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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


HINTS  ON  ADVOCACY, 


INTENDED   FOK   PRACTITIONERS 


IN  CIYIL  AND  CRIMINAL  COURTS, 


WITH   SUGGESTIONS 


AS  TO  OPENING  A  CASE,  EXAMINATION -IN-CHIEF,  CROSS- 
EXAMINATION.  RE-EXAMINATION,  REPLY.  CONDUCT 
OF  A  PROSECUTION  AND  OF  A  DEFENSE.  ETC., 
AND  ILLUSTRATIVE  CASES; 


BY  EICHAED  HAEEIS, 

BARRISTER  AT  LAW,  OF  THE  MIDDLE   TEMPLE   AND   MIDLAND   CIRCUIT. 

Second  American  from  the  Fourth  English  Edition. 

REVISED  AND  ENLARGED 

By  WILLIAM  L.  MURFREE,  Sr, 


ST.  LOUIS,  MO.: 

WILLIAM   H.    STEVENSON, 

TAW    PUBLISHER    AND    PUBLISHEli    OF    THE 

CENTRAL  LAW  JOURNAL. 

ISSl. 


COPYRl&HT   1880. 

BY  *• 

William  H.  Stevenson. 


Copyright,  1881, 

BT 

William  H.  Stevenson. 

'4 


iSt.  Louis,  Mo.:    Printed  by  the  Central  Laic  Journal. 


'^ 
J. 

l 

.^ 

V 

^  i'KEFxVCE  TO  THE  FLRST  ENGLISH  EDITION. 

There  is  no  School' of  Advocacy;  thero  are  no  Lectukks  on 
Advocacy;  and  so  far  as  I  have  been  able  to  ascertain,  there  is  no 
BOOK  on  the  subject.  The  young  lawyer  has  to  find  his  way  as  best  he 
can,  very  often  to  the  sacrifice  of  important  interests  and  many  unfortu- 
nate clients.  As  he  has  never  learned  anythini^  of  the  Art  of  Advocacj, 
he  is  no  more  fitted  for  the  task  of  advocating  their  rights  than  the 
clients  themselves,  except  in  so  far  as  his  knowledge  of  law  will  assist 
him  in  the  purely  legal  aspects  of  the  question.  It  seems  to  me  lament- 
able that  no  instruction  stiould  ever  be  given  in  an  art  which  requires 
an  almost  infinite  amount  of  knowledge.  Tact  can  not  be  taught,  but  it 
will  follow  from  experience,  and  a  good  deal  of  experience  nfay  be  con- 
densed into  the  form  of  rules.'  "/  never  felt  so  much  in  trant  oj  a  lender 
as  I  did  ii'hen  I  had  to  croas-examinc  that  doctor,''  said  a  talented  junior  of 
considerable  standing,  the  other  day.  Why  should  this  have  been? 
Wliat  he  had  to  cross-examine  about  was  simple  enough,  although  the 
question  involved  was  the  sanity  or  insanity  of  an  individual  at  a  partic- 
ular time.  But  he  had  no  rule  to  guide  him,  and  was  simply  adrift.  It  is 
with  the  hope  that  some  of  the  observations  I  have  made  in  the  course 
of  my  experience  may  be  of  some  little  service  to  beginners  in  the  pro- 
fession, and  whose  want  of  knowledge  of  this  great  practical  branch  of 
it  is  no  fault  of  theirs,  that  I  have  v<>ntured  to  offer  them  the  following 
"Hints." 

Temple.  Sept.  17,  1879. 


It  t 


687413 


PREFACE  TO  THE  SECOND  AMERICAN  EDITION. 

In  revising";  this  atlmirable  work  of  an  English  bairister,  while  dis- 
carding matter  inapplicable  to  onr  system  of  practice,  I  have  carefully 
avoided  the  exclusion  of  anything  of  value  to  the  American  reader. 
Seeking  to  further  promote  its  utility  to  our  young  advocates,  I  have 
added  four  new  chapters  treating  respectively  of  • -American  Forensic 
Oratory."  "Ethics  of  Advocacy,"  -This  Honorable  Court,"  and 
'•  Gentlemen  of  the  Jury."  In  Chapter  IV.  on  "  Classes  of  Witnesses," 
I  have  ventured  to  insert  sections  characterizing  the  "  Expert "  witness, 
the  ''Non  mi  Bicordo''  witness,  the  "  Sv\ift "  witness,  the  "Bullying" 
witness,  and  the  '•  Female  "  witness,  as  these  types  appear  so  frequently 
on  the  stand  as  to  entitle  them  to  separate  mention. 

The  success  which  tliis  little  book  has  achieved  has  already  demon- 
strated that  it  supplies  a  great  need,  and  it  is  hoped  that  the  changes 
and  additions  which  have  been  made  will  l)Otter  adapt  it  to  tjie  wants  of 
American  students  and  those  young  advocates  who  are  still  grateful  for 

••  Hints." 

W.  L.  MURFREE,  Sr. 

St.  Loris,  Mo.,  April  '20,  1881. 


TABLK  OF  CONTEVTS. 


CIIAPTEU.  PAGK. 

r.— Opening  of  the  Case 1 

II. — The  Examination  in  Chief 2;J 

in. — The  Cross-Examination 37 

IV.— Classes  of  Witnesses -50 

V. — The  Re-Examination 84 

VI.— The  Reply 91 

VII.— Opening  and  Closing  Defendant's  Case    .        .        .  108 

VIII. — Conduct  of  a  Criminal  Prosecution    .        .        .        .119 

IX. — Conduct  of  a  Defense  in  a  Criminal  Case      .        .  131 

X. — The  Ethics  of  Advocacy .  147 

XI. — American  Forensic  Oratory l.")8 

XII. — "This  Honorable  Court  "" 1G7 

XIII. — "  Gentlemen  OF  THE  Jury  ■■ 173 

XIV. — Illustrative  Cases 17t* 

APPENDIX. 

1. —  Whately  on  Cross -Examinatioit, \S9 

2. — Cross-Examination  of  a  Medical  Witness      .....  190 

3. — Medical  Certainty 191 

4. — Injudicious   Cross-Examination 192 

b. — Analysis   of  Opening  Speech  of  Sir  Alexander    Cockburn    in  thfi 

Trial  of  rulmcr  for  Murder 193 


HINTS  ON  ADVOCACY. 


CHAPTKK'    I.—  OpexXing  the  Case. 


SECTION. 

1.  Common  Sense  Requisite. 

2.  How  to  Treat  the  Jury. 

3.  Be  Earnest  and  Logical. 

4.  Fine  Talking. 

5.  Arguing  too  Soon. 

6.  Show  your  Bolief  in  your  Case. 

7.  Redundancy  and  Illustration. 

8.  Arrangement  and  Ord(M-. 


SECTION. 

9.  Making  an  Impression. 

10.  Tricks. 

11.  Imitation. 

12.  Arrangement  of  Facts. 

13.  Moderation. 

U.  Soft  Speaking  a  Fault. 

15.  Rapidity  a  Fault. 

16.  Spurious  Pathos. 


It  is  because  I  do  not  know  of  any  book  which  may  be 
considered  as  a  a-uide  to  the  aspirant  to  the  honors  of  the 
profession  (the  <j:reatest  of  which  is  to  be  a  master  of  advo- 
cacy), that  I  have  taken  upon  myself  to  offer  the  following 
remarks  for  his  consideration.  They  are  not  put  forward 
in  a  dogmatic  spirit,  but,  on  the  contraiy,  with  a  full  con- 
sciousness of  their  imperfections  and  of  their  incomplete- 
ness when  the  great  subject  of  which  they  treat  is  consid- 
ered in  its  vastness  and  sublimity :  but  if  they  should  be 
useful  in  discovering  to  the  young  advocate  a  dangerous 
pitfall,  or  in  giving  a  direction  to  his  unpracticed  energies, 
I  shall  be  pleased  that  I  overcame  my  scruples  as  to  inil)- 

lishing  them. 

(I) 


25  HINTS  ON  ADVOCACY. 

Sec.  1.  Common  Sense  Requisite. —  I  shall  begin  with  a 
proposition,  which  I  do  not  think  will  be  seriously  disputed, 
namely,  that  Common  Sense  is  the  foundation  of  good 
advocacy.  A  man  may  be  brilliant  as  an  advocate,  and 
even  successful,  but  the  mere  dazzle  of  his  splendor  will  be 
no  light  to  lighten  the  path  of  the  inexperienced.  On  the 
contrary,  it  may  mislead  him  by  its  fascinations,  and  conduct 
him  into  dangerous  errors.  A  brilliant  advocate  may  be 
bold  and  win  l)y  it ;  or,  if  he  fail,  may  cover  his  defeat  by 
masterly  and.  striking  efforts,  whereas  an  ordinary  person, 
failing  in  his  attempted  imitation,  would  present  but  a 
clumsy  appearance  in  his  overthrow.  Common  sense,  in- 
valuable in  all  human  pursuits,  is  of  the  utmost  importance 
in  advocacy.  It  is  the  one  quality  without  which  all  others 
are  useless,  and  with  which  almost  all  others  are  superfluous. 

Experience  smooths  the  way  in  all  professions  ;  but  I  have 
seen  so  many  accidents  brought  about  for  want  of  it,  that 
it  may  be  useful  to  note  some  of  those  principles  Avhich 
seem  to  guide  the  leaders  of  the  bar,  and  which  have  pre- 
sented themselves  by  reason  of  their  constant  applicability 
and  usefulness,  to  my  mind,  in  the  form  of  rules,  un- 
written, but  nevertheless  capable  of  being  codified,  and 
certainly  deserving  of  obedience. 

J  suppose  no  one  will  deny  that  many  a  good  case  has 
been  lost  by  an  inexperienced  advocate,  and  many  a  bad 
one  gained  by  a  skilful  one.  There  is  a  good  deal  "  in  the 
play,"  even  when  you  hold  an  indifferent  hand.  Anything, 
therefore,  in  the  shape  of  a  rule  which  may  be  useful  to  a 
young  advocate,  either  by  preventing  him  from  committing 
a  blunder,  or  assisting  him  to  conduct  his  case  in  a  fairly 
creditable  manner,  must  be  of  some  service.  An  advocate  is 
always  dealing  with  human  nature.  It  is  the  instrument 
be  works  with,  and  it  is  the  field  of  his  labors.  Whether 
he  measures  his  opponent,  or  estimates  the  qualities  of  the 
jury,  or  probes  the  mind  and  character  of  the  witness,  a 
knowledge  of  human  nature  or  human  character  is  the  key 
to  success.     To  treat  mankind  as  mere  machines,  as  some 


HOW  TO  TREAT  TIIK  JURY.  6 

advocates  occasionally  do,  Is  to  show  an  utter  absence  of 
that  knowledge  which  is  the  best  acquirement  and  the  first 
necessity  of  an  advocate. 

§  2.  How  to  Treat  the  Jury. —  The  worst  thing  a  man 
can  do  is  to  treat  the  jury  as  though  it  was  composed  of  so 
many  fools.  Whatever  may  be  their  mental  capacity, 
whether  you  have  a  stupid  or  a  wise  jury,  to  treat  them  as 
unworthy  your  respect  is  probably  to  lose  your  case,  and  to 
discover  yourself  a  man  of  very  little  wisdom.  There  are 
almost  sure  to  be  one  or  two  shrewd  men  on  the  commonest 
of  common  juries,  and  inasmuch  as  they  will  in  all  proba- 
bility lead  the  rest,  you  must  beware  of  making  them  your 
enemies,  as  you  undoubtedly  will,  by  word  or  manner,  if 
you  let  them  suppose  that  you  consider  them  of  little  un- 
derstanding. 

A  jury  is  a  difficult  body  to  handle,  and  the  more  expe- 
rienced an  advocate  becomes,  the  more  delicately  will  he 
treat  the  men  who  have  to  decide  the  fate  of  his  cause. 
The  persuasive  is  better  than  the  roaring  style,  and  I  have 
never  known  a  bawling  advocate  a  successful  one  in  getting 
verdicts.  A  jury  invariably  endeavors  to  do  what  they  think 
right,  and  to  decide  justly :  it  is  inherent  in  human  nature 
that  they  should  ;  the  danger  you  have  frequently  to  guard 
against  is,  that  their  very  desire  to  do  what  is  just  leads 
them  at  times  to  an  unjust  conclusion.  They  often  set  up 
a  rough  kind  of  justice  among  themselves,  and  then  de- 
termine to  administer  it.  The  advocate  who  knows  that  his 
client's  rights  are  opposed  to  this  rude  theory  of  justice 
must  convince  the  jury,  and  bring  them,  if  possible,  to  a 
more  legal  view.  This  is  not  to  be  accomplished  by  decla- 
mation, but  by  reason — by  combating  the  notion  that  has 
taken  possession  of  their  minds  ;  it  may  be  an  extremely 
false  or  an  erroneous  one.  Before  you  can  succeed  in  this, 
you  must  ascertain  what  that  idea  is,  and  this  you  can  only 
gather  by  a  process  of  reasoning  based  upon  a  knowledge 
of  human  nature.  You  may  or  may  not  touch  the  right 
point;    if    you  do,    and   arc  skilful    in   your  mode  of  ad- 


4  HINTS  ON  ADVOCACY. 

dress,  you  will  probably  overcome  it ;  if  you  caunot  de- 
termine \vluit  is  influencing  the  jury,  so  much  the  worse  for 
your  client.  Your  knowledge  of  human  nature  is  at  fault, 
and  you  may  as  well  sit  down. 

There  is  nothing  that  makes  the  jury  feel  more  keenly 
your  small  appreciation  of  their  mental  capacity,  than  flat- 
tering them.  When  I  say  flattering,  I  mean  the  coarse  and 
fulsome  style  ('xhil)ited  in  such  expressions  as  an  ''intellect- 
ual jury,"  a  "  jury  of  freemen,"  and  kindred  phrases. 
There  is  a  flattery  that  is  soothing,  pleasing  and  winning ; 
but  to  flatter  well  is  an  art  and  gift  that  few  possess.  It 
consists  in  using  language  which  does  not  itself  directly 
flatter,  but  leads  the  hearers  to  flatter  themselves.  It  is  as 
subtle  and  irresistible,  as  it  is  charming  and  delightful.  If 
you  watch  a  juiy  while  an  advocate  is  telling  them  that  they 
are  something  out  of  the  common  run  of  human  nature, 
you  will  see  the  same  expression  on  their  features  that  you 
observe  in  the  faces  of  the  crowd  that  listens  to  a  peddler 
while  he  is  praising  his  wan^s.  In  both  cases  the  hearers 
know,  as  well  as  you  do,  that  you  are,  to  use  a  common 
])lirase,  "  humbugging  them."  But  in  the  latter  case  the 
listeners  are  amused  without  being  annoyed  ;  in  the  former, 
they  are  generally  disgusted,  and  condemn  you  as  a  shallo\T 
impostor  who  would  cheat  them  if  you  could.  Nothing  can 
be  achieved  at  the  bar  by  artifice,  except  a  contemptible 
reputation.  But  you  ma^^  accomplish  everything  by  ear- 
nestness and  an  honest  emph)yment  of  those  arts  without 
which  Genius  itself  would  be  but  a  brilliant  failure. 

§  3.  Be  Earnest  and  Logical. —  The  most  effective  way 
to  secure  the  attention  of  the  jury  is  to  be  in  earnest,  or  at 
least  to  appear  to  be.  If  3'ou  are  really  so  (as  you  should 
be),  you  will  communicate  something  of  your  own  feeling 
to  them.  This  is  the  art  of  speaking:  the  carrying  your 
hearers  with  you  in  mind  and  sentiment. 

The  next  thing  to  observe  is  to  be  logical ;  without  this 
you  will  not  be  even  intelligible.  Somethings  you  say  may 
be  understood,  but  your  address  geuerallj^  will  be  a  jumble 


FINE  TALKING.  0 

of  words  ;ind  a  confusion  of  ideas.  I  tlo  nc^t  by  any  moans 
imply  that  you  must  put  both  sides  logically  ;  l)y  so  doing 
you  may  reason  yourself  out  of  court.  It  is  your  own  case 
that  I  speak  of,  and  it  matters  little  whether  you  are  ad- 
dressing-an  educated  or  an  nneducated  audience;  the  mind 
is  a  reasoning  machine,  and  it  will  the  more  readily  grasp 
arguments  that  arc  put  logically  than  those  which  are  pre- 
sented with  unnatural  distortions  of  premiss  and  sequence. 

A  skilful  and  experienced  advocate  will  quickly  perceive 
the  master  mind  of  the  jury,  and  to  him  he  will  first  ad- 
dress himself.  Nor  will  he  be  Ions;  in  ascertainins:  whether 
he  has  made  an  impression  or  not.  If  he  succeed,  he  need 
not  trouble  himself  very  much  about  the  rest,  unless  there 
arc  those  on  the  jury  who  have  prejudices  against  his  case. 
If  there  are,  these  jircjudiees  must  be  attacked,  and  if  pos- 
sible beaten  down  ;  for  it  will  not  be  sufficient  to  enlist  the 
intelligence  of  one  or  two  minds  against  the  prejudices  of 
others.  Intelligence  and  prejudice  are  the  two  master  influ- 
ences on  the  jury.  If  there  be  no  prejudice,  you  win  by 
convincing  the  best  mind.  If  you  can  not  gain  the  strongest, 
try  to  secure  the  Aveakest ;  for  if  you  succeed  here,  you  will 
not  l«se  your  case.  The  jury  are  there  for  you  to  gain  over 
to  your  side  if  3^ou  can  by  fair  and  legal  argument,  by  pre- 
senting your  case  agreeably  to  their  minds  and  sentiments. 
I  do  not  say  you  ought  to  appeal  to  the  passions  or  sympa- 
thies of  a  jury,  but  it  is  pcrfectl}"  allowable  to  leave  -the 
jury  to  make  that  appeal  for  themselves.  The  maii  who 
would  directly  solicit  compassion  is  a  poor  advocate,  but  he 
who  would  present  the  facts  of  his  case  so  that  the  jury 
may  regard  his  client  with  that  sentiment  is  a  great  one. 
The  one  knows  human  nature,  the  other  does  not.  The  one 
awakens  your  sympathy,  the  other  rouses  your  contempt. 

§  4.  Fine  2\dMng. — One  great  evil  to  avoid  if  you  would 
be  understood  and  appreciated,  (Mthcr  by  a  common  jury  or 
a  special,  is  finc^  talking.  Fine  language  will  not  stand  the 
wear  and  tear  of  an  ordinaiy  nisi  priiix  contest,  and  no- 
Avherc  (except,  p(>rlia[)s,  in  the  ears  of  a  romantic   female) 


6  •  HINTS  ON  ADVOCACY. 

is  it  so  powerful  :ind  effective  as  good  well-chosen  homely 
words.  It  is  us  unnatural  as  the  spangled  dress  of  the  acro- 
bat, and  as  utterly  unfitted  for  the  ordinary  business  of  a 
work-a-day  life.  One  has  often  seen  advocates  mystify 
their  meaning  in  phrases  which  were  more  like  a  girlish  nov- 
elist's hysterical  utterances,  than  the  sound  language  of  a 
man  and  a  scholar.  It  will  take  a  good  and  gifted  speaker 
a  long  time,  and  will  require  a  great  deal  of  practice,  before 
he  can  venture  to  embellish  his  address  with  the  figures  or 
the  fancies  of  rhetoric  ;  indeed,  the  most  gifted  and  the 
most  finished  speaker  Avill  only  use  them  in  a  limited  man- 
ner;  profuseness  of  ornamentation,  like  a  redundancy  of 
words,  being  at  all  times  more  calculated  to  obscure  the 
meaning  than  to  elucidate  it;  and  above  all  things  affecta- 
tion should  be  avoided.  Every  listener  detests  it,  and  can- 
not help  feeling  some  degree  of  contempt  for  the  person 
who  indulges  in  it.  Affectation  is  a  weakness  even  with 
strong  minds,  and  although  it  is  sometimes  tolerated  in  a 
clever  man,  it  is  never  admired  ;  when  an  ordinary  individ- 
ual indulges  in  it,  he  is  simply  despised. 

A  quiet  style  is  always  more  powerful  than  a  noisy  one. 
I  have  never  seen  a  verdict  obtained  by  noise  ;  foam  has  no 
weight,  fury  of  language  no  force.  I  by  no  means  say  that 
a  conversational  style  is  powerful  ;  on  the  contrary,  you 
might  just  as  well  attempt  to  set  fire  to  a  bed  of  growing 
bulrushes  with  a  piece  of  tinder,  as  to  rouse  a  jury  by  a 
feeble  speech. 

But  at  the  bar,  except  in  rare  cases,  the  higher  gifts  of  ora- 
tory are  out  of  place.  It  is  a  limited  field  ;  it  has  its  beaten 
tracks,  and  along  these  men  must  travel.  Oratory  is  not  one 
of  its  paths  ;  in  other  words,  attempts  at  Avhat  is  commonly 
called  oratory  are  to  be  avoided.  What  a  figure  an  advo- 
cate would  present,  who  should  attempt  the  flights  of  Burke 
or  Sheridan  in  a  "running  down"  case!  What  is  really 
required  is  a  well-told  simple  narrative  of  the  facts  in  open- 
ing your  case  to  the  jury.  The  fewer  the  words,  the  better ; 
and  the  less  argument,  the  more  likeh'^  is  your  statement  to 


SHOAV  YOUR  BELIEF  IN  TOUR  CASH.  7 

be  believed.  It  must  seem  a  strange  story  to  the  jury  that 
requires  arguing  upon  before  the  other  side  have  had  a  syl- 
lable to  say  in  contradiction. 

§  5.  Argiiing-  too  Soon. — An  advocate  will  sometimes  tell 
the  jury  in  his  opening  that  the  plaintiff  was  on  his  i)roper 
side  of  the  way,  and  that  he  will  convince  them  that  that 
must  have  been  so,  because,  etc.,  etc.  This  is  as  bad 
as  an  opening  can  be,  because  it  casts  a  doubt  at  the  very 
commencement  upon  the  truth  of  his  own  story.  The  best 
reason  for  the  jury's  believing  your  story  before  contradic- 
tion is  that  your  witnesses  swear  to  it.  When  the  other 
side  have  brought  facts  or  arguments  in  conflict  with  it, 
your  time  of  argument  will  have  arrived,  and  your  argu- 
ments will  have  a  freshness  which,  if  used  before,  they  would 
not  possess  ;  they  will  work  as  if  their  edge  had  not  been 
taken  off  b}^  a  clumsy  use  of  them  when  there  was  nothing 
to  cut.     When  there  is  no  grist,  the  miller  stops  his  mill. 

Another  advantage  from  not  arguing  too  soon  will  be  that 
your  adversary  will  not  be  able  to  turn  your  arguments 
against  yourself,  or  to  fit  his  own  in  accordance  with  your 
theories.  In  other  words,  you  had  better  obtain  some 
knowledge  of  your  opponent's  hand  before  throwing  away 
your  best  cards. 

At  the  expense  of  repetition  I  have  endeavored  to  im]n-ess 
this  point  upon  the  student's  attention,  because  it  seems  to 
me  of  the  greatest  importance  ;  a  good  case  may  be  thrown 
away  by  a  weak  and  indiscreet  opening. 

§  6.  Show  Your  Belief  in  Your  Case. — The  first  thing 
to  be  done  in  opening  a  case  is  to  impress  the  jury  with  the 
idea  that  at  least  you  believe  in  it  yourself.  This  may  seem 
almost  too  obvious  a  truism  to  mention,  and  no  doubt  it  is 
present  to  the  mind  of  every  advocate.  We  all  know  it,  or 
believe  we  do.  The  student  himself  will  say,  "Of  course 
you  must  make  the  jury  believe  that  you  think  your  case  is 
an  honest  one.  Everybody  knows  that."  Granted;  but  it 
is  not  the  knowingjit  that  I  am  inculcating,  but  a  very  dif- 
ferent thing,  viz.,  the  making  the  jury  l)clievc  this.     I  have 


8  iimrs  ON  advocacy. 

seen  udvociites  whose  manner  was  such  that  they  scarcely 
ever  seemed  to  believe  in  their  own  case.  A  want  of  seri- 
ousness characterized  their  tone  and  language.  This  is  a 
fatal  blunder  of  style.  There  is  nothing  which  a  jury  so 
much  detests  in  the  person  addressing  them  as  an  air  of 
jaunty  frivolity.  One  need  hardly  say  that  this  is  quite  a 
distinguishable  quality  from  humor,  for  which  it  is  often 
intended.  Humor,  when  it  can  ])c  introduced  with  propri- 
ety, is  one  of  the  nu)st  insinuating  of  qualities  ;  is  almost 
always  acceptable,  and  is  one  of  the  most  fascinating  as 
well  as  successful  of  an  advocate's  gifts.  But  you  must 
have  the  genuine  article  and  not  the  spurious  imitation,  be- 
tween which  there  is  as  much  difference  as  between  a  hearty 
lauijh  and  the  a'l'in  of  a  dog  that  runs  about  through  the 
city.  There  is  another  evil — not  the  least  under  the  sun  in 
advocacy — which  consists  in  constantly  anticij^ating  your 
opponent's  case.  It  is  a  similar  fault  to  that  of  arguing  in 
defense  of  your  assertions  before  they  are  attacked,  but  a 
trifle  perhaps  more  dangerous.  Some  advocates  think  it 
proper  to  anticipate  the  defense  and  attem})t  to  demolish  it. 
The  law  now-a-days  does  not  permit  it ;  he  has  the  right  to 
present  his  case,  and  it  will  be  your  duty,  if  you  can,  to  de- 
molish it  afterwards.  Even  if  you  know  the  exact  line  he 
is  going  to  take,  it  is  not  always  advisable  to  meet  him  half- 
way. But  in  ninety-nine  cases  out  of  a  hundred  you  do  not 
know  the  manner  in  which  his  case  will  be  presented,  al- 
though you  may  know  what  his  defense  is.  After  he  has 
placed  it  before  you  and  emplo3^ed  his  arguments,  you  know 
the  exact  line  he  has  taken  ;  and  if  you  cannot  beat  him 
then,  it  is  quite  certain  3'on  could  not  have  done  so  before. 
Do  not  spring  at  your  adversar^^  before  he  is  over  the  ditch, 
otherwise  you  may  find  yourself  uncomfortably  landed  in 
the  middle. 

One  often  hears  a  youthful  (and  sometimes  a  not  youth- 
ful) advocate  say,  "  he  cannot  conceive  what  defense  his 
learned  friend  can  have" — that  "  it  is  really,  gentlemen, 
an  undefended  case."     And  3'et,  very  often  these  remarks 


REDUNDANCY  AND   ILLUSTOATIOX.  9 

are  followed,  more  often  tluiii  not,  with  ti  verdict  for  the 
learned  friend  who  has  no  case  or  no  defense.  It  is  impos- 
sible to  conceive  of  anythiniij  moi'e  ineffective  than  this. 
Such  assertions  are  worse  than  useless.  They  are  no  part 
of  the  opening  ;  they  are  not  argument ;  they  lend  no  em- 
phasis to  the  statement ;  and  they  are  not  true.  They  im- 
press neither  judge  nor  jury ;  but  they  sometimes  make  the 
counsel  who  utters  them  look  extremely  ridiculous.  If  the 
learned  gentleman  on  the  other  side  has  no  case,  it  will  ap- 
pear without  your  saymg  so.  If  he  has  a  case,  your  saying 
he  has  none  will  not  alter  the  fact.  This  is  nothinu;  more 
than  an  old,  worn-out  "  dodge"  of  an  almost  extinct  school 
of  advocacy.  It  is  a  selfish  assumption  and  an  overl:)earing 
piece  of  arrogance  on  the  part  of  the  advocate  employing 
it,  as  though  he  would  not  only  proclaim  himself  the  judge 
and  jury  in  his  own  cause,  but  even  deprive  his  opponent  of 
the  riirht  of  beino-  heard  in  his  defense. 

§  7.  Redundancy  and  Illutit ration. — It  would  be  out  of 
l)lace  perhaps  to  sUy  anything  further  with  regard  to  redun- 
dancy of  expression,  were  it  not  a  prominent  fault  with  many 
young  advocates.  It  is  a  pleasant  thing,  no  doubt,  to  air 
one's  eloquence  in  public,  but  it  reminds  one  of  the  process 
of  airing  other  articles — it  shows  a  good  many  weak  places. 
The  fewest  Avords,  as  a  rule,  make  the  best  speech.  All 
the  language  not  required  to  convey  ideas  is  surplusage, 
and  if  used  at  all,  should  be  of  the  very  best ;  if  not  re- 
quired for  use,  it  should  be  employed  for  the  i^urpose  of 
lending  dignity  or  moderate  embellishment.  It  may  be  said 
that  baldness  of  expression  is  not  compatible  with  excel- 
lence. That  maybe  true,  and  I  am  not  unaware  that  the 
graces  of  eloquence  lend  a  charm  to  the  speaker  as  well  as 
the  speech.  These,  doubtless,  should  be  cultivated  and  em- 
ployed when  in  a  state  of  cultivation,  but  not  before. 
Redundancy,  however,  is  not  a  grace,  l)ut  a  deformity,  and 
the  way  to  cultivate  that  is  to  cut  it  off  altogether.  Pov- 
erty of  language  is  one  thing,  choice  of  words  another,  and 
l)e   the  greatest  poverty  of  language   with  the 


10  I#NT»  ON  ADVOCACY. 

irrcatest  reduiidancv  of  words.  One  has  often  heard 
speakers  talk  for  half-an-hour  without  making  a  single  sen- 
tence, reminding  one  of  a  muddy  rivulet  after  a  deluge, 
winding  its  way  wherever  it  can  find  an  outlet  or  an  inlet, 
making  a  great  fuss,  and  never  coming  to  a  single  stop  or  a 
conclusion.  Of  course,  no  one  would  say  that  orna- 
mentation is  to  be  ignored.  On  the  contrary,  it  should  be 
carefully  used,  but  not  so  as  to  smother  that  which  it 
should  render  more  attractive. 

Illustration,  sparingly  employed,  is  an  effective  orna- 
ment ;  and  so  nmch  so,  that  there  is  often  a  danger  of  even 
truth  and  reason  being  sacrificed  to  it.  Minds  are  apt  to  be 
carried  away  by  a  beautiful  simile,  and  because  that  is  true, 
are  prone  to  consider  that  the  argument  illustrated  must  be 
true  also.  But  in  an  opening  speech,  illustration  should  be 
utterly  abandoned.  Fact,  and  fact  alone,  is  the  strength  of 
an  opening  speech  ;  although  when  I  come  to  deal  with  the 
examples  further  on,  I  will  endeavor  to  point  out  how  the 
facts  may  be  commented  upon,  when  necessary,  by  way  of 
explanation,  connection  or  emphasis. 

§  8.  Arrangement  and  Order. — The  principal  thing  in  an 
opening  speech  is  arrangement  and  order.  No  really  good 
statement  can  be  made  without  this  ;  and  time  will  never  be 
wasted  in  noting  up  and  arranging  a  case  so  as  to  present  it 
chronologically  to  the  jury. 

It  may  be  said  no  one  doubts  that  order  and  arrangement 
are  necessary  to  make  a  good  opening  statement.  It  is  so 
true,  that  every  one  knows  it  and  no  one  denies  it ;  but  so 
long  as  so  many  advocates  act  as  if  they  did  not  know  it, 
and  neglect  not  only  all  order,  method  and  arrangement,  but 
confuse  facts  and  dates  to  the  annoyance  of  jury  and  judge 
and  to  the  disparagement  of  their  client,  it  seems  not  un- 
necessary to  insist  that  the  strictest  attention  should  be  paid 
to  the  order  of  time,  the  order  of  facts,  and  the  arrange- 
ment of  causes  and  effects.  Every  statement  should  be  as 
free  from  confusion,  as  if  the  facts  had  been  mapped  out  on 
paper  with  the  utmost  faithfulness.     Every  series  of  facts 


ARRANGEMENT  AM)  OltDER.  11 

should  1)0  brouglit  down  in  the  strictest  order,  and  if  there 
be  many  series  operating  apart,  but  exercising  an  influence 
upon  the  main  action  of  the  drama,  they  should  l)e  brought 
down  in  their  natural  order  and  sequence  until  they  are  all 
centered  upon  the  common  [)oint.  In  the  most  complicated 
and  tangled  circumstances  there  should  be  no  confusion.  It 
IS  the  l)usiness  of  the  advocate  and  the  art  of  advocacy  to 
separate  them,  and  to  show  their  relations  to  one  another, 
their  bearing  upon  each  other,  and  their  influence  upon  the 
main  action.  Irrelevant  uuitter,  therefore,  should  be  care- 
fully excluded — by  no  means  so  easy  a  task  as  it  at  first 
sight  appears,  and  only  to  be  accomplished  by  diligent  study 
and  thoughtful  practice. 

What  is  understood  by  irrelevant  matter,  is  matter  which 
attaches  itself  to  or  mixes  itself  up  with  the  circumstances  of 
the  case  without  any  natural  connection  with  or  bearing  upon 
the  case  itself.  There  are  always  facts  which,  in  one  sense, 
may  be  said  to  be  irrelevant,  but  which  in  reality  are  not  so. 
And  examples  might  be  given  in  cases  of  actions  for  malicious 
prosecution,  where  events  or  conversations  that  o])erated 
upon  the  mind  of  the  prosecutor  have  to  be  considered.  So 
in  cases  of  libel :  and  so,  in  fact,  in  most  inquiries  where 
the  state  of  mind  of  an  individual  is  either  the  main  subject 
of  inquiry  or  has  to  be  considered. 

What  is  the  issue,  and  upon  what  evidence  ivill  it  depend? 
Determine  that  first,  and  then  the  evidence  will  arrange  itself 
almost  naturall3^  But  in  many  cases,  that  which  should  be 
first  settled  in  the  advocate's  mind  is  never  distinctly  per- 
ceived. 

As  an  instance,  take  the  following  pleadings: —  A  en- 
deavors to  set  up  a  lost  will.  He  alleges  that  it  was  made 
and  executed  on  a  certain  day  five  years  ago,  and  that  it 
never  was  revoked.  The  defendant  denies  the  nudving  in 
accordance  with  the  requirements  of  the  statute.  He  says 
that  the  alleged  testator  was  not  of  sound  mind,  memory 
and  understanding ;  that  the  will  was  afterwards  destroyed 
while  he  was  of  sound  mind,  meinorv  and   understanding, 


12  HINTS  ON  ADVOCACY. 

with  the  intention  of  revoking  it,  and  that  the  phiintiff  is 
not  a  legatee.  Now  it  Avill  be  obvious  here  that  many  issues 
will  present  themselves  ;  but  it  may  be  equally  apparent  to 
the  counsel  for  the  plaintiff  that  the  whole  (jucstion  may 
ultimately  resolve  itself  into  (his,  whether  some  particular 
witness  saw  the  Avill  at  a  particular  time.  This  will  perhaps 
depend  not  upon  the  accuracy  of  the  witness'  memory,  but 
upon  his  crcdibilit3^  The  decision,  therefore,  may  depend 
entirely  upon  the  question  as  to  whether  a  witness  can  be 
believed  or  not.  The  execution  ina}"  be  past  all  question ; 
the  sanity  of  the  testator  indis[)utablo  upon  the  evidence  ;. 
the  contents  provaljlc  by  some  draft  or  otherwise  ;  the  ques- 
tion of  destruction  or  no  ])y  the  testator,  up  to  a  given 
moment,  uncontroverted  ;  the  insanity  of  the  testator  from 
a  given  time  also  placed  beyond  doubt ;  the  issue,  therefore,, 
will  resolve  itself  into  the  (juestion  whetlicr  the  will  was  in 
existence  between  two  given  periods,  and  that  must  d(>i)end 
upon  the  evidence  to  this  fact  of  the  person  who  saw  it  in 
the  meantime.  If  he  be  believed,  verdict  for  the  plaintiff  ; 
if  disbelieved,  for  the  defendant. 

Now,  it  will  be  obvious  that  to  hiy  much  stress  upon  those 
points  which  will  be  placed  beyond  all  dispute  as  the  evi- 
dence is  unfolded  Avoukl  be  wasted  energy.  The  facts  should 
of  course  be  stated  with  due  precision  and  conciseness,  but 
to  dw^ell  upon  them  w^ould  onh^  be  wearjing  the  jur}'  to  no 
purpose,  and  diverting  their  attention  from  the  proper  object 
of  inquiry.  The  thing  really  to  ])e  done  is  to  impress  them 
with  the  reliability  of  your  witness  ;  if  they  disbelieve  him, 
your  case  is  lost ;  therefore  you  must  guard  him  against  the 
assaults  of  your  opponent,  whose  skill  will  be  directed  to 
breaking  him  down.  He  wmII  know  that  this  is  the  key  of 
your  2)osition.  But  how  is  the  witness  to  be  strengthened? 
If  you  have  no  corroboration,  must  he  not  stand  b}'^  himself  ? 
By  no  means.  A  hundred  incidents  in  the  story  to  which 
your  witness  speaks  may  ))(>  corroborated  1)}^  other  testimony, 
and  this  will  tend  to  show  his  truthfulness.  You  must  search 
for  this  kind  of  corroboration  when  von  have  no  other,  and 


MAKING  AN   IMPRESSION.  13 

if  you  iiiid  Lhul  he,  is  gcneriilly  supported  by  ollior  and,  it 
may  be,  totally  independent  witnesses,  upon  points  which 
neither  he  nor  they  deemed  material ;  if  you  find  that  the 
story  is  consistent  in  itself,  and  is  likewise  compatible  with 
the  probal)ilities  of  the  case,  you  may  rely  upon  it  that  the 
verdict  will  be  yours. 

It  might  not  be  out  of  place  here,  to  mention  that  this 
will  show  the  absolute  necessity  of  a  careful  examination- 
in-chief,  if  that  has  been  clumsy  and  disconnected,  if  only 
half  the  story  has  been  told,  the  very  probabilities  I  have 
been  speaking  of  will  become  inipro))abilities,  and  your  wit- 
ness will  not  only  be  unsupported  but  weakened.  It  will  be 
seen  also  from  this  illustration,  how  important  a  part  reason 
exercises  in  matters  of  this  kind.  The  jury  will  neither  be- 
liere  nor  disbelieve  a  witness  without  a  reason  satisfactory 
to  their  own  minds.  You  must,  therefore,  take  care  that 
every  fact|upoii  which  a  fair  argument  in  favor  of  your 
theory  can  be  based  is  not  only  elicited  in  examinatioii-in- 
chief ,  but  stored  up  in  your  memory,  to  be  reproduced  to 
the  jury  for  the  purpose  of  influencing  their  judgment. 

§  9.  Maldng  an  Impression. —  And  here,  it  ma}^  be  ob- 
served, there  is  a  mode  of  creating  an  impression  on  the 
mind  of  a  jury  without  in  the  least  appearing  to  desire  it, 
and  which  is  of  all  others  the  most  effective.  All  men  are 
more  or  less  vain,  and  every  man  gives  himself  credit  for  a 
deal  of  discernment.  He  loves  to  And  out  things  for  him- 
self— to  guess  the  answer  to  a  riddle  better  than  to  be  told 
it — to  think  he  can  see  as  far  into  an  opaque  substance  as 
most  people.  In  many  instances  jurymen  will  see  farther 
into  a  case  than  either  judge  or  counsel,  and  will  sometimes 
correctly  decide  upon  a  cause  for  some  reason  that  is  not 
apparent  and  is  never  ascertained.  The  most  experienced 
counsel  is  often  puzzled  at  a  verdict,  the  reasons  for  which 
are  sound  and  good,  and  yet  which  arose  from  no  effort  on 
his  part  or  that  of  his  opponent,  but  simply  out  of  a  com- 
mon-sense^view  of  the  facts  as  thev  presented  themselves 
to  the  unprofessional  mind.  If  you  want  a  point  thoroughly 


14  HINTS  ON  ADVOCACY. 

to  impress  the  jury,  tlo  not  uctu;illy  make  it,  if  you  can 
effect  your  object  by  a  less  direct  means  ;  let  the  jury  make 
it  for  themselves,  only  ])c  sure  that  it  is  made.  You  may 
be  too  venturesome  and  too  clever,  Avhich  is  a  great  deal 
worse  than  not  being  clever  enough. 

Mystery  is  an  excellent  wrapper  for  an  important  fact, 
especially  when  you  let  the  jury  undo  it  for  themselves. 
Say  that  a  will  mysteriously  disappears  between  two  given 
times.  If  your  case  is  that  A.  B.,  w4io  took  no  share  un- 
der it,  and  who  would  bo  })cnefited  by  its  destruction,  in 
all  probability  took  the  will  away,  you  need  go  no  further 
than  state  that  there  is  no  evidence  as  to  the  disappearance 
of  the  instrument ;  that  the  niece  who  was  interested  in  its 
preservation  and  the  doctor  were  the  only  persons  who  were 
in  the  house  between  those  times.  If  then  you  show  that  A. 
B.,  for  ever  so  brief  a  moment,  came  to  the  house,  the  jury 
will  as  a  matter  of  course  come  to  the  conclusion  in  their 
ow^n  minds,  without  any  direct  charge  on  your  part,  that  A. 
B.  destroyed  it,  and  upon  very  slight  evidence  indeed  give 
a  verdict  in  favor  of  the  non-destruction  of  the  will  by  the 
testator.  The  jury  in  fact  will  draw  all  necessary  infer- 
ences for  themselves. 

This  is  not  a  mere  "  trick"  of  advocacy;  if  it  were,  it 
would  be  better  not  to  mention  it.  Tricks  are  the  resources 
of  feeble  advocates,  and  the  worst  or  the  best  feature  of  a 
trick  is  that  it  always  fails  in  its  object.  It  is  known  in- 
stantly, and  damages  the  cause  it  is  intended  to  serve,  as 
the  advertisements  of  a  quack  doctor  proclaim  his  im- 
posture. 

§  10.  Tricks. —  What  is  the  use  of  endeavoring  to  preju- 
dice the  cause  of  your  ojjponent  by  saying :  "  Gentlemen,  I 
don't  say  that  the  defendant  has  obtained  these  goods  by- 
false  pretenses,  but  I  say  his  mode  of  dealing  will  not  com- 
mend itself  to  your  minds."  This  is  a  trick — an  impover- 
ished one,  it  is  true  ;  but  so  w^ould  every  other  one  seem  if 
I  w^ere  to  write  it  down.  Look  at  the  following  :  "I  don't 
think  much  of  such  and  such  a  transaction  ;  I  mcrelv  call 


TRICKS.  15 

your  atloiitioii  to  it  in  [);issiiig  ;  oi-  tlie  fact  thiit  th<!  dcf(;ii(i- 
aiit  did  or  said  so  and  so."  These  are  devices  which  do  not 
a[)[)roacli  to  the  pretensions  of  art,  and  are  unworthy  of  a 
good  speaker.  'I'liey  are  not  the  truth — not  tlie  words  of 
sincerity  ;  and  wlien  you  have  neither  truth  nor  sincerity, 
although  you  may  have  acting,  you  cainiot  have  the  highest 
and  best  speaking.  Truth  and  sincerity  are  among  the 
charms  and  graces  of  ehxjuence,  and  they  are  the  power  that 
stirs  and  im])resses  an  audience.  I  am  far  from  saying  that 
there  are  not  two  ways  of  presenting  a  sound  proposition  or 
an  incontrovertible  argument.  Truth  and  sincerity  them- 
selves may,  in  an  uncultured  and  inartistic  speaker,  be  made 
to  look  absolutely  offensive,  and  not  only  to  look  so,  but  to 
be  so.  Therefore  it  is  absolutely  necessary,  if  you  would 
impress  your  hearers,  that  art  sliouid  come  to  the  aid  of 
reason  ;  the  same  idea  and  the  same  truth  may  be  conveyed 
in  coarse  as  well  as  in  cultured  language.  One  need  not  say 
in  which  it  will  be  transmitted  most  effectively ;  but  the 
tricks  referred  to  are  apart  from  both,  and  partake  more  of 
the  style  appropriate  to  the  conjuror  or  wizard  at  a  fair  than 
to  an  advocate  speaking  at  the  bar. 

Tricks  of  expression  are  nearly  allied  to  tricks  of  gesture 
and  facial  distortions,  such  as  one  laments  to  observe  occa- 
sionall}^  even  in  these  refined  and  polished  times.  Some  ad- 
vocates twist  their  faces  into  a  look  of  extreme  ano-uish  when 
they  address  a  jury,  as  though  the  weight  of  their  task 
caused  them  physical  torture.  Others  attempt  to  screw 
their  features  into  looks  of  supreme  contempt,  anger,  or 
scorn.  Every  one  Avill  acknowledge  this  to  be  altogether 
bad.  The  face  takes  its  expression  from  the  feelings  ;  and 
you  can  no  more  give  it  a  natural  look  which  does  not  spring 
from  that  natural  source  than  you  could  make  the  face  of  an 
india-rubber  doll  beam  with  pleasure.  It  is  only  by  dint  of 
la])or  and  study  that  the  sculptor  can  obtain  an  expression 
upon  the  marble  which  faintly  represents  the  emotions.  It 
is  quite  clear  every  one  is  not  artist  enough  to  put  the  right 
muscles  in  motion  to  produce  a  corresponding  effect  upon 


16  HINTS  ON  ADVOCACY. 

his  own  features  whenever  he  desires  it.  Attempts  of  this 
kind  arc  not  onl}^  ludicrous  but  foolish.  I  have  seen  an  ad- 
vocate, in  trying  to  look  angry,  cause  a  titter  all  round  the 
court,  and  set  the  jury  on  the  grin.  He  was  attempting  a 
piece  of  acting,  and  not  being  an  actor,  failed.  He  pulled 
the  wrong  muscles  of  his  face,  if  I  may  be  permitted  the 
expression.  A  photographer  is  often  blamed  for  not  pro- 
ducing a  "good  likeness,"  when  the  fault  is  with  the  sitter, 
who  either  attempts  to  look  learned,  or  interesting,  or 
heroic,  or  anything,  in  short,  but  what  he  is.  Do  you  sup- 
pose every  one  could  put  his  face  in  a  hole  in  the  canvas, 
and  look  a  good  likeness  of  himself?  I  think  not.  Men  are 
such  poor  actors  as  a  rule,  that  they  cannot  even  "look 
themselves"  if  they  try  to.  I  have  seen  another  shake  his 
head  very  much,  and  stoop  to  the  jury  in  a  mode  which 
must  have  suggested  to  Dickens  the  "jury  droop,"  and 
turn  up  his  eyes  to  watch  the  effect ;  this  was  intended  for 
pathos.  It  did  not  answer  ;  a  bad  actor  and  a  grinning 
audience  was  all  it  came  to. 

All  acting  that  shows  itself  to  be  acting  is  bad,  and  at  the 
bar  perhaps  is  more  out  of  place  than  anywhere  else.  The 
instant  the  jury  suspect  yoii  of  attempting  to  deceive  them, 
their  confidence  in  you  will  be  gone,  and  they  .will  pay  no 
attention  to  any  argument  you  may  use.  They  will  suspect 
the  most  sound  and  plausible  as  being  only  the  more  deceit- 
ful. If  you  feel  in  earnest — as  you  should  whatever  your 
cause — your  features  will  exhibit  all  the  emotions  they  are 
intended  by  nature  to  display  without  any  effort  or  contriv- 
ance on  your  })art.  And  this  you  may  be  sure  of,  that  if 
vou  do  not  attempt  any  facial  display,  you  will  never  pull 
the  wrong  muscles. 

§  11.  Imitation. — It  is  perhaps  as  well  here  to  warn  the 
young  advocate  against  a  voi-y  common  and  fascinating  er- 
ror— that  of  imitation.  A  rc^illy  good  advocate  has  a  style 
of  his  own,  and  an  individuality  which  would  be  utterly 
spoilt,  wxre  he  to  attempt  to  blend  it  with  that  of  another. 
To  imitate  a  successful  man's  style  is  like  a  short  man  put 


ARRANGEMENT  OF  FACTS.  17 

ting  on  :i  tall  man's  coat.  However  well  it  Htted  the  one, 
it  is  sure  to  look  ridiculous  on  (he  other.  Style  is  horn  with 
a  niaii  as  much  as  his  mental  cai)acity  itself.  Nor  should  it 
be  forgotten  that  imitators,  as  a  rule,  adopt  the  failings  and 
not  the  excellencies  of  their  models.  Affectations  of  speech 
and  mannerisms  are  what  generally  catch  the  eye  of  the  im- 
itator. Besides  this,  imitations  are  bad  in  themselves.  As 
a  rule  they  are  grotesque,  and  frequently  little  more  than 
burlesques  of  the  original.  It  is  at  once  apparent  that  they 
are  no  i)art  of  the  imitator's  individuality,  however  well  they 
may  be  done. 

It  does  not  of  course  follow  that  the  best  advocates  are 
not  therefore  to  be  accurately  studied.  On  the  contrary,  it 
is  servile  imitation  that  is  to  be  deprecated,  and  not  the 
careful  study  of  the  graces  and  excellencies  of  the  best  men. 
The  smooth,  unrutHcd  demeanor,  the  courtesy,  the  polished 
ease,  the  unexaggerated  eloquence,  the  order  and  arrange- 
ment of  speeches,  the  skilful  and  subtle  modes  of  cross- 
examination,  the  fearless  independence  of  the  nuisters  of 
advocacy,  should  be  studiously  considered.  Imitate  these — 
if  you  can.  But  wherever  you  see  an  extravagance  of  style, 
even  though  it  may  be  fascinating  in  the  advocate  to  whom 
it  is  natural,  never  be  tempted  for  a  moment  to  imitate  that. 
An  imitator  must  of  necessity  be  a  second  or  third-rate  man, 
and  is  generally  below  even  that. 

^^  §  12.  Arrangement  of  Facts. — To  open  a  strong  case  is 
not  to  [)rove  it.  What  you  should  strive  to  do  is  to  give 
the  substance  (somewhat  more  than  an  outline)  of  the  case 
vou  intend  to  prove.  This  should  be  done  so  that  when  the 
evidence,  usually  in  disjointed  and  often  in  widely-separated 
pieces,  is  presented  piece  by  piece  to  the  jury,  they  may  sec 
the  bearings  of  each  upon  that  which  has  gone  before  and 
afterwards  upon  the  whole,  and  appreciate  its  value. 

Suppose  you  have  a  number  of  witnesses  to  prove  various 
facts,  totally  separate  and  apparently  disconnected  from  one 
another,  but  yet  having  a  bearing  directly  or  indirectly  upon 
the  main  issue.     These  witnesses  represent  numerous  facts, 

(2) 


18  HINTS  ON  ADVOCACY. 

distinct  and  separate,  occurring  at  different  limes  and  in 
different  places,  jet  all  working  towards  a  common  center, 
confirniing  and  corroborating  one  another,  leading  up  to  and 
indeed  forcing  on  the  main  event  of  the  story.  It  is  obvi- 
ous that  in  opening  a  case  of  this  kind,  if  you  would  make 
the  narrative  clear,  you  must  deal  completely  with  one  set 
of  facts  at  a  time — the  earliest  in  date  will  probably  be  the 
best  to  commence  with.  These  should  l)e  made  plain  and 
intelligible  to  the  jury  merely  as  facts,  and  no  attempt 
should  be  made  to  show  their  bearing  upon  the  main  point 
of  the  case  until  the  other  branches  of  the  subject  are  in 
like  manner  made  intelligible.  If  this  be  done  too  early, 
the  effect  will  be  lost,  the  narrative  will  be  disturbed,  and 
the  minds  of  the  hearers  confused.  The  first  set  of  facts 
should  be  staled  and  left  ready  to  be  fitted  in  at  the  right 
time.  The  next,  and  the  next  will  follow  in  proper  order, 
until  at  last  the  whole  of  your  materials  will  be  ready  to  bo 
built  up  into  the  structure  you  intend  to  form. 

The  jury  having  thus  seen  the  separate  parts  of  your  nar- 
rative, will  perceive  readily  what  position  each  will  occupy, 
and  what  relation  it  will  bear  to  the  others. 

It  need  scarcely  be'said  that  if  you  make  any  part  out  of 
due  proportion  to  the  rest  by  exaggeration,  it  will  not  fit  in, 
and  will  spoil  the  synmictry  of  the  whole  ;  nor  should  the 
statement  he  flimsily  adorned  with  superfluous  eloquence, 
as  they  dress  out  an  animal  with  tawdry  ribbons  when  the 
creature  is  about  to  be  baited  ;  nor  overlaid  with  prejudice, 
which  is  equally  unnecessary^  in  a  good  case  or  a  bad  one. 
No  advocate  need  attempt  to  infuse  prejudice,  but  on  the 
contrary  should  be  on  his  guard  to  prevent  its  influence. 
You  should  seek  only  to  make  your  statement  appear  truth- 
ful and  natural.  Short  of  this,  the  opening  will  be  a  failure  ; 
beyond  tliis,  the  evidence  Avill  be. 

§  13.  Moderation.  —  "Your  opening,"  said  a  distin- 
guished Queen's  Counsel  to  his  opponent,  "was  admirable; 
it  combined  moderation  with  such  wonderful  force."  The 
moderation,  in  fact,  was  its  force.       It  was  a  case  in  which 


SOIT  SPKAKING  A  FAULT.  19 

there  was  a  multitude  of  facts,  aud  various  sets  of  them  ; 
but  in  which,  if  two  facts  were  true,  the  whoh;  mu>t  he,  l»e- 
cause  the  rehitions  of  these  two  to  the  remainder  were  such 
that  the  fabric  could  not  exist  without  them,  and  must  exist 
in  its  entirety  if  those  facts  occupied  the  resi)eclive  positions 
assigned  to  them.  Whik'  s[)eaking  of  moderation,  it  may 
be  as  well  to  sa}^  that  it  is  e(|ually  necessary  to  moderate 
the  tone  as  the  style.  It  enables  a  speaker  the  better  to  ex- 
hibit the  most  beautiful  of  all  the  graces  of  eloquence, 
namely,  that  of  modulation.  This  is  the  music  of  speak- 
ing, little  cultivated  I  fear  at  the  bar,  or  anywhere  else  ex- 
cept the  stage,  but  one  Avhich  is  of  inestimable  value  in 
forensic  speaking,  and  one  tluit  ought  to  be  practiced  with 
the  utmost  diligence.  There  are  some  few  orators  still  liv- 
ing, who  possess  this  charm  in  perfection. 

§  14.  Soft  Speaking  a  Fault. —  There  is  another  fault 
which  is  equally  well  to  guard  against  as  loud  speaking, 
and  that  is  soft  speaking.  Speak  out !  don't  mumble  and 
drawl  out  your  words  as  though  the}^  were  tape  you  were 
selling  by  the  yard,  and  were  not  certain  how  much  you  had 
in  stock.  A  man  who  bellows  may  get  on  at  the  bar  to  a 
certain  extent,  Ijut  if  you  are  afflicted  with  an  inaudible 
voice  you  will  not  get  on  at  all.  One  does  not  like  to  see 
the  expression  of  pain  on  a  juryman's  face  as,  with  his 
hand  behind  his  ear  and  his  mouth  open  (as  though  he 
might  catch  something  in  that  way),  he  is  straining  to  hear 
what  the  advocate  is  talking  about.  Sometimes  diffidence 
produces  softness  of  speech  ;  if  so,  perseverance  will  over- 
come it ;  but  it  is  doubtful  if  the  diffident  young  advocate 
will  have  much  opportunit}'  for  perseverance  in  court.  But 
there  are  places  where  he  may  [)crsevere  as  much  as  he 
likes.     There  are  seashores  and  windy  commons. 

But  the  most  trying,  and  by  no  means  the  least  useful  of 
places  for  practice,  is  the  quiet  room.  To  speak  to  one's 
self  requires  some  energy  and  a  considerable  amount  of 
courage.  You  have  to  surmount  the  idea  of  the  foolishness 
of  the  situation,  and  it  constantly  presses  upon  }'ou  ;  you 


20  HINTS  ON  ADVOCACY. 

have  to  listen  to  the  tones  of  your  own  voice,  and  these, 
unless  you  stand  excessively  high  in  your  own  opinion, 
sound  like  self-reproaches  ;  you  are  sometimes  carried  away 
b}'^  wild  flights  of  extravagant  oratory,  like  one  going  up  in 
a  balloon ;  and  then  it  suddenly  collapses  ;  and  as  you  come 
down,  you  cannot  for  the  life  of  you  help  thinking  what  an 
eccentric  person  you  are.  But  it  is  because  of  all  these 
thoughts  and  feelings  arising  out  of  the  absurdity  of  the 
situation,  and  the  grotesqueness  of  the  fact  of  a  man's  de- 
claiming to  himself,  that  the  exercise  is  so  useful ;  and  if 
one  can  conquer  his  diffidence  in  his  own  room,  he  will  be 
sure  to  master  it  in  public.  Besides  this,  the  being  able  to 
listen  to  and  criticize  one's  own  words  will  be  of  immense 
benefit ;  and  if  he  have  any  power  at  all  of  modulating  the 
voice,  he  will  be  able  to  exercise  it  here,  vvheie  no  other 
sound  interposes.  It  is  here,  if  anywdiere,  he  will  be  able 
to  tune  it  and  to  test  its  capabilities. 

There  is,  doubtless,  too  little  attentiou  paid  to  this  branch 
of  advocacy.  A  good  many  proceed  as  if  men  were  univer- 
sally gifted  with  a  tine  flexible  voice,  with  sweet  eloquence, 
and  the  art  of  using  both  to  perfection.  Whereas,  the  gift 
of  a  rich  voice  is  one  of  the  rarest,  and  requires  cultivation 
before  it  can  be  rendered  perfect.  How  much  more  is  it 
necessary  to  tune  those  voices  that  are  uot  rich  and  very 
often  are  not  even  pleasant? 

§  15.  Rapidity  a  Fault, —  It  may  not  be  superfluous,  in 
concluding  this  chapter,  to  say  that  a  speaker,  in  opening  a 
case,  should  never  be  rapid.  As  a  rule,  rapidity  of  utter- 
ance is  not  a  common  fault,  l)ut  there  are  many  who  talk 
too  fast,  and  as  a  necessary  consequence  say  too  little.  It 
is  difiicult  for  all  who  are  not  the  most  finished  speakers  to 
make  a  sentence,  and  it  is  not  easy  for  juries  to  follow  at 
times  deliberate  speakers  who  can  form  sentences ;  but 
what  must  their  difliculty  be  in  following  a  man  who  speaks 
with  great  volubility,  and  never  makes  a  sentence  at  all? 
"  Can't  make  head  or  tail  of  him,"  said  a  juror,  after  a 
flippant  junior  had  sat  down,  ''  talks  too  fast."      "•  What's 


"  sruHious  rATiios.  21 

the  action  for?'  askcil  aiiotlici-.  "  U  lie  for  pla-aiilivc  or 
defendant?"  in(iiiired  a  third.  An  advocate  had  better  not 
open  his  case  at  all,  if  he  cannot  leave  a  better  impression 
than  this — he  is  simply  injuring  his  client. 

Slow,  sure  and  short,  is  a  good  motto  for  young  advo- 
cates. A  long  oj)cning  is  wearisome  and  unnecessary,  and 
it  can  only  be  nuide  more  so  by  repetition.  Not  that  you  can 
deal  out  speeches  by  the  yard,  and  cut  tiicm  off  in  lengths 
as  required.  I  am. speaking  Avith  reference  to  verbiage 
rather  tlnm  time.  A  speech  may  be  very  long  that  occupies 
twenty  minutes  :  it  may  be  admirably  concise  and  take  six 
hours  in  its  delivery.  The  opening  in  the  Tichborne  trial 
for  perjury  occupied  some  days,  yet  it  is  a  model  of  neat- 
ness, arrangemciit,  and  concise  narrative. 

A  short  speech  is  more  powerful  than  a  long  one,  and 
when  jurvmen  tap  the  ledge  of  their  desk  with  impatient 
fingers,  you  may  take  it  for  granted  you  have  been  already 
too  long,  and  every  additional  word  may  be  not  only  a  bur- 
den to  them,  but  also  to  your  client.  Consistently,  there- 
fore, with  those  graces  of  diction  without  which  language 
would  sometimes  be  offensively  bald,  the  fewer  Avords  you 
employ,  the  better.  It  by  no  means  follows  that  you  should 
speak  in  telegrams,  but  that  mere  verbiage  should  be  pruned 
away,  so  that  there  may  be  greater  strength  and  a  more 
symmetrical  and  cultured  beauty.  The  jury  care  little  for 
the  advocate's  conceits;  they  want  the  facts  of  the  case, 
and  it  is  precisely  because  they  recpiire  these  only,  that  you 
must  present  them  in  a  form  that  will  not  only  impress  them 
upon  their  memory,  but  induce  an  acceptance  of  them  in 
accordance  with  your  view  and  your  client's  interest. 

§  If).  Spurious  Pathos. —  Another  error  to  avoid  is  that 
of  attempting  pathos  ;  it  is  almost  sure  to  make  the  jury 
laugh.  A  Aveeping  advocate  and  a  laughing  audience  is  a 
scene  for  farce,  and  not  for  a  court  of  justice.  The  power 
of  moving  the  passions  is  the  highest  and  rarest  gift  that 
nature  bestows  on  an  orator.  It  is  so  great  that  it  may  be 
called  oratory  itself.    Rut  this  mastery  over  the  feelings  does 


22  HINTS  ON  ADVOCACY. 

not  come  \)\  j)r:iclic'e  ;  it  cannot  he  :i('(|uire(l,  nor  is  a  speaker 
pathetic  hy  choice,  lie  may  weep,  if  he  he  weak  enough, 
hut  that  is  not  i)ath()S  ;  he  nuiy  shake  his  head,  hold  u\)  his 
hands,  do  anything  else  to  mimic  feeling,  but  he  will  not 
move  his  audience,  fortunately  it  is  a  gift  little  needed  at 
the  bar  ;  on  the  contrary,  if  one  be  endowed  with  it,  it  will 
be  his  duty  to  sup[)ress  rather  than  to  encourage  it.  To 
attempt  an  appeal  to  the  passions  without  possessing  the 
power,  is  but  to  declare  yourself  an  im})ostor,  and  to  show 
that  you.  would  act  unfairly  it  you  could.  There  may  be 
occasions  when  an  advocate's  cause  appeals  to  the  deepest 
feelings  of  our  nature.  Those  are  times  when,  if  you  have 
the  power,  you  may  use  it  legitimately  and  even  nobly  in 
behalf  of  the  opi)ressed  or  the  injured  ;  but  if  you  have 
not  the  high  gift,  you  had  better  not  spoil  the  pathos  of 
facts  by  a  ridiculous  burlesque  of  su})lime  sentiment. 

In  conclusion,  it  may  be  remarked  that  men  who  have 
attained  eminence  as  speakers  have  reached  it  only  by  im- 
mense labor,  by  unwearied  practice,  and  by  a  dilligent  study 
of  the  greatest  masters.  It  may  seem  superfluous  to  go 
through  so  severe  a  training  merely  to  become  a  J^J'ifii  Prius 
advocate  ;  but  when  one  considers  that  to  speak  well  is 
almost  to  ensure  success,  it  must  be  conceded  I  think,  that 
success  is  worth  all  the  labor  of  our  lives  to  achieve.  And 
further  it  must  not  be  forgotten  that  the  time  may  come 
when  some  great  occasion  will  demand,  whether  at  the  bar 
or  elsewhere,  the  latent  powers  which  have  been  stored  uj) 
bv  the  earnest  labors  of  one's  earlv  vears. 


EXAMINATKXN    I\   ClIIF.r, 


23 


CHAPTER    II.— The  Examination'  in  Chief. 


«ECTION. 

17.  The  Position  of  a  Witness. 

18.  IjCt  him  Tell  liis  own  Story  in 

his  own  AV'ay. 

19.  Form  of  Questions. 

20.  To  Kxauiiiie  Well  a  Ditiicult 

Task. 

21.  Illustration  of    how     not    to 

Examine. 

22.  Order  of  Time  should  be  Ob- 

served. 

23.  Repetition  of  Phrases  a  Fault. 


SECTION. 

24.  Never   Cross-Examine    your 

own  AVitness. 

25.  Leading  Questions. 

26.  Examiniiiij  from  Brief. 

27.  Goinof  too  Fast. 

2S.  Keeping  from  Irrelevant  Mat- 
ter. 

29.  Trilles  ma,y  Turn  a  Case. 

;J0.  Interrupting  the  Witness. 

31.  How  not  to  Examine  —  An- 
other Illustration. 


One  of  the  most  important  branches  of  tidvocacy  is  the 
examination  of  a  witness  in  chief.  As  a  rule,  a  young 
lawyer,  if  he  be  ])old,  and  he  may  be  bold  throuirh  fear, 
throws  himself  into  his  work  like  one  who  })liniges  into  the 
water  before  he  can  swim.  There  must,  under  such  circum- 
stances, be  much  floundering  and  confusion.  The  nervous- 
ness that  is  necessaril}'  felt  when  he  rises  in  court  before  an 
experienced  judge,  whose  eye  is  like  a  microscope  for  his 
faults,  and  who  is  not  always  tender  in  his  criticism,  would 
be  a  terrible  drawback,  even  if  the  junior  were  master  of 
his  work.  As  a  rule,  however,  he  has  very  little  notion  as 
to  how  a  witness  should  be  examined.  lie  feels,  too,  that 
there  are  around  him  those  who  are  too  prone  to  "  mark 
what  is  done  amiss,"  not  from  ill-nature,  by  any  means,  l)ut 
from  habit.  His  nervotisness  increases  in  proportion  as  his 
want  of  ])raclical   experience  makes  itself  more   and  more 


24  HINTS  OX  ADVOCACY. 

manifest  to  himself.  One  can  scarcely  conceive  of  a  sitna- 
tion  more  unenviable  than  this.  I  do  not  pretend  that  any 
observations  about  to  be  made  will  cure  all  this,  or  give 
him  experience  ;  but  it  is  hoped  that  some  of  my  remarks 
will  so  far  be  advantageous  as  to  enable  him  to  avoid  many 
errors,  and  to  keep  in  the  well-trodden  path  of  experienced 
advocates. 

§    17.    The.  Position  of  a  Witness. — One  fact  should  be 
remembered  to  start  with,  and  it  is  this  :  The  witness  whom 
he  has  to  examine  has  probably  a  plain  straightforward  story 
to  tell,  and  upon  the  telling  it  depends  the  belief  or  dis- 
belief   of    the    jury,   and  their  consequent    verdict.     If    it 
were  to  be  told  amid  a  social  circle  of  friends,  it  would  be 
narrated  with  more  or  less  circumlocution  and  considerable 
exactness.     But  all  the  facts  would  come  out;  and  that  is 
the  first  thing  to  insure  if  the  case  be,  as  I  nmst  all  along 
assume  it  to  be,  an  honest  one.     I  have  often  known  half  a 
story  told,  and  that  the  worse  half  too,  the  rest  having  to 
be  got  out  l)y  the  leader  in  re-examination,  if  he  have  the 
opportunity.     If  the  story  were  being  told  as  I  have  sug- 
gested, in  private,  all  the  company  would  understand  it,  and 
if  the  narrator  were  known  as  a  man  of  truth,  all  would 
believe   him.     It   would  require   no   advocate  to  elicit  the 
facts  or  to  confuse  the  dates  ;  the  events  would  flow  pretty 
much  in   their  natural  order.     Now  change  the  audience  ; 
let  the  same  man  attempt  to  tell  the  same  story  in'a  coui't 
of  justice.     His  tirst  feeling  is  that  he  must  not  tell  it  in 
his  own  way.     He  is  going  to  be  examined  upon  it ;  he  is  to 
have  it  dragged  out  of  him  piece-meal,  disjointedly,  by  a 
series  of  questions — in  fact,  he  is  to  be  interrupted  at  every 
point  in  a  worse  manner  than  if  every l)ody  in  the  room,  one 
after  another,  had  questioned  him  about  what  he  was  going 
to  tell,  instead  of  waiting  till  he  had  told  it.     It  is  not  m\- 
Wke  a  post  77iorte7n ;   only  the  witness  is  alive,  which  seems 
almost  a  misfortune   to   him.     He   knows,  too,  that  every 
word  he  says  will  probably  be  disputed,  if  not  flatly  contra- 
dicted. He  has  never  had  his  w^ord  disputed  before  perhaps, 


FORM  OF  QUESTIONS. 


25 


but  now  it  is  vciy  likely  to  be  suggested  that  lie  is  commit- 
ting rank  perjury. 

This  is  pretty  nearly  the  state  of  mind  of  many  a  witness, 
when  for  the  first  time  he  enters  the  box  to  ))e  examined. 
In  the  lirst  place  then,  he  is  in  the  worst  possible  frame  of 
mind  to  be  examined — he  is  agitated,  confused,  and  be- 
wildered. Now  put,  to  examine  him,  an  agitated,  confused 
and  bewildered  young  advocate,  and  you  have  got  the  worst 
of  all  elements  together  for  the  production  of  what  is 
wanted,  namely,  evidence.  First  of  all  the  man  is  asked 
his  name,  as  if  he  were  going  to  say  his  catechism,  and 
much  confusion  there  is  often  about  that,  the  witness  feel- 
ing sometimes  that  he  is  blamed  by  the  judge  for  not  having 
a  more  asreeable  one,  or  for  bavins:  a  name  at  all.  He 
looks,  however,  as  if  he  could  not  by  any  possibility  have 
helped  it,  and  thinks  he  has  got  off  remarkably  well  so  far. 
Then  he  faces  the  young  counsel,  and  wonders  what  will  be 
the  next  question. 

§  18.  Let  him  Tell  his  own  Story  in  his  own  Way. — 
Now  the  best  thing  the  advocate  can  do  under  these  circum- 
stances is  to  remember  that  the  witness  has  something  to 
tell,  and  that  but  for  him,  the  advocate,  he  would  probably 
tell  it  very  well,  "in  his  own  way."  The  fewer  interruptions 
therefore,  the  hotter;  and  the  fewer  questions,  the  less  ques- 
tions will  be  needed.  Watching  should  l)e  the  chief  work  ; 
especially  to  see  that  the  story  be  not  confused  with  extra- 
neous and  irrelevant  matter.  The  chief  error  the  witness 
will  be  likely  to  fall  into  will  be  hearsay  evidence,  either  he 
says  to  somebody,  or  somebody  says  to  him  something 
which  is  inadmissible  and  delays  the  progress  of  events. 
But  the  witness  being  very  tender,  you  must  be  very  care- 
ful how  you  check  the  progress  of  his  "  he  says,  says 
he's,"  or  you  may  turn  off  the  stream  altogether. 

§  19.  Form  of  Questions. —  The  most  useful  questions 
for  eliciting  facts  are  the  most  commonplace.  "What  took 
place  next?  "  being  infinitely  better  than  putting  a  question 
from  the  narrative  in  vour  brief,  which  leads  the  witness  to 


2(i  HINTS  ON  ADVO('ACY, 

contradict  you.  The  inteiTogutivc  "  Yes?  "  as  it  asks  noth- 
ing and  yet  everything,  is  better  than  a  rigmarole  phrase, 
such  as,  "  Do  you  remember  what  the  defendant  did  or  said 
upon  that?"  The  witness,  after  such  a  question,  generally 
feels  puzzled,  as  if  you  were  asking  him  a  conundrum  which 
is  to  ])c  passed  on  to  the  next  person  after  he  has  given  it 
up. 

Judges  frequently  rebuke  juniors  for  putting  a  question 
in  this  foini :  "Do  you  remember  the  29th  of  February 
last?"  Jn  the  first  i)lace,  it  is  not  the  day  that  has  to  be 
remembered  at  all,  and  whether  the  witness  recollects  it  or 
not,  is  immaterial.  It  is  generally  the  facti^  that  took  place 
about  that  time  you  Avant  deposed  to,  and  if  that  date  is  at 
all  material,  you  are  putting  the  question  in  the  worst  pos- 
sible form  to  get  it.  A  witness  so  interrogated  begins  to 
wonder  whether  he  remembers  the  day,  or  whether  he  does 
not,  and  becomes  puzzled.  You  might  just  as  w^ell  ask  if  he 
remem])ers  the  1st  day  of  May,  181(5  (the  da}-  on  which  he 
was  born),  instead  of  asking  him  the  date  of  his  birth. 
This  is  one  of  the  commonest,  and  at  the  same  time  one  of 
the  stupidest  blunders  that  can  be  made,  I  will,  therefore, 
at  the  risk  of  repetition,  give  one  more  illustration. 
Suppose  you  ask  a  witness  if  he  remembers  the  10th  of 
June,  1874  ;  he  i)rol)ably  does  not,  and  both  he  and  you 
are  bewildered,  and  think  you  are  at  cross  purposes  ;  but 
ask  him  if  he  was  at  Niagara  in  that  year,  and  you  will  get 
the  answer  without  hesitation  ;  inquire  when  it  was,  and  he 
will  tell  you  the  10th  of  June.  In  this  Avay  you  avoid  tax- 
ing a  Avitness's  memory  ;  always  a  dangerous  proceeding, 
and  much  more  within  the  province  of  cross-examination 
than  examination-in-chief.  Maiiy  a  good  case  has  been 
lost,  and  many  more  will  be,  by  clumsy  questions  of  this 
kind  at  the  commencement  of  a  Avitness's  examination. 
If  you  leave  his  mind  in  a  state  of  bewilderment  and  con- 
fusion, your  Avork  Avill  only  need  to  be  followed  up  by  a  Avell 
delivered  question  or  Iavo  in  cross-examination,  to  demolish 
llie  Avhole  of  his  evidence  ;  and  thiMi,  in  all  probability,  the 


now   NOT  TO  EXAMINE.  27 

advocate  will  think  he  would  certainly  have  won  if  he  iiad 
not  had  so  stiii)id  a  witness. 

§  20.  To  Examine  Well  a  Difficult  TukIc. — Incalcula!)lc 
mischief  is  done  l)y  a  clumsy  examination,  and  yet  as  little 
attention  is  paid  to  this  bi-anch  of  advocacy  as  to  any. 
Everyone  thinks  it  is  so  easy,  that  a  blunder  is  impossible. 
1  believe  it  to  be  the  most  difficult  task  of  all — it  certaiidy 
is  the  most  important ;  because  your  evidence  is  your  case. 
It  may  seem  unnecessary  to  observe  that  no  sign  of  irrita- 
bility should  be  manifested  toward  the  witness.  If  he  be 
stupid,  your  vexation  will  by  no  means  assist  him,  nor  will  a 
sharp  rebuke,  such  as  one  too  often  hears  administered. 
The  more  stupid  he,  the  more  patient  should  the  advocate 
be.  Every  question  should  not  only  be  intelligible  and  rel- 
evant in  itself,  but  it  should  be  put  in  such  a  form  that  its 
relevancy  to  the  case  maybe  apparent  to  him.  A  question, 
without  l)eing  leading,  should  be  a  reminder  of  events 
rather  than  a  test  of  the  witness's  recollection.  I  will  give 
an  illustration  which  will  show  how  easy  it  is  to  blunder, 
and  how  necessary  it  is  to  avoid  blundering. 

§  21.  lllufitration  of  how  Not  to  Examine. — A  man 
brings  an  action  against  a  railway  company  for  false  im- 
prisonment. The  facts  are  these:  He  lost  his  ticket  and 
refused  to  pay  ;  the  i)orter  on  the  platform  called  the  in- 
spector, who  sent  for  a  i)oliceman  and  then  gave  him  into 
custody.  The  best  way  not  to  get  the  facts  out  is  to  ex- 
amine him  in  the  following  manner  : — 

"  Were  you  asked  for  your  ticket? — Yes." 

"  Did  you  produce  it? — No." 

"  Why  not?— 1  had  lost  it." 

"  Are  you  sure  you  took  it? — Quite." 

"  Positive?  (This  is  a  good  opening,  surely,  for  the  thin 
edo;e  of  the  wedge  of  cross-examination  —  a  doubt  thrown 
on  your  own  witness). — I  am  quite  sure." 

"  What  did  the  defendant  say  then  ;  I  mean  the  porter?  " 
{This    blunder   ought    not   to   have   been  made.)     At  this 


28  HINTS  ON  ADVOCACY. 

point  llic  witness  is  in  a  hopeless  nuidcilt',  :iiid  says;  "  I 
was  given  into  custody." 

The  story  is  not  half  told,  although  it  is  one  of  the  sinn 
plest  to  tell. 

Now  the  counsel  contradicts  by  way  of  explanation,  and 
says  "  iS'o,  no;  do  attend."  Witness  strokes  his  chin  as 
though  al)out  to  he  shaved.  Judge  glances  at  him,  and  won- 
ders if  he's  lying.  Counsel  for  the  defendants  (sure  to  be 
eminent)  smde,  and  the  jury  look  knowingly  at  one  an- 
other, and  begin  to  think  it's  a  trumped-up  attorney's  ac- 
tion. 

Now  start  again  with  another  question. 

"  When  the  train  stopped  you  got  out? — I  didn't  get  out 
afore  it  stopped,  sir." 

"Did  any  one  ask  you  for  your  ticket? — They  did;" 
emphatically,  as  though  he  knows  now  where  he  is. 

"Who? — I'm  sure  I  don't  know  who  he  is  ;  never  see  the 
man  before  in  my  life." 

"  Well,  well,  did  he  do  anything? — No,  sir,  he  didn't  do 
nothin'  as  I  knows  of  ;"  evidently  puzzled,  as  if  he  had  for- 
gotten some  important  event  upon  which  the  whole  case 
turns. 

This  looks  so  ridiculous  on  paper  that  it  is  possible  some 
readers  will  doubt  if  it  ever  happened.  I  can  only  say 
there  are  many  much  more  ridiculous  incidents  that  occur 
in  courts  of  justice  when  young  counsel  have  what  is  called 
a  "stupid"  witness  in  the  box.  In  court  the  stupidity 
always  seems  to  be  that  of  the  Avitness.  On  paper  it  looks 
as  if  the  learned  counsel  could  establish  a  better  title  to  it. 
This  leads  me  to  notice  a  cardinal  rule  in  examination-in- 
chic^.  It  is  seldom  regarded  as  such  b}^  beginners,  and 
only  seems  to  be  observed  as  the  result  of  experience.  Why 
it  should  not  be  learnt  at  once  and  implicitly  obeyed,  I  do 
not  know,  except  it  be  that  it  has  never  been  written  down. 

§  22.  Order  of  Time  should  be  Observed. — The  rule  I  re- 
fer to    is,  that  in  examining  a  witness  the  order  of  time 


OIJDKU  OF  TIME.  29 

ought  always  to  bo  observed.  Stated  in  writing  it  looks  sim- 
ple enough,  and  everybody  says  "  of  course."  Plain  as  one 
of  the  ten  commandments,  and  as  often  violated  by  young 
advocates.  Just  step  into  court,  and  you  will  see  events 
running  over  one  another  like  ants  on  tin  ant  hill.  Not  only 
is  the  rule  not  acted  upon,  it  is  never  even  considered. 
True,  the  principal  events  in  a  story  are  generally  placed  in 
something  like  order,  because  the  judge  requires  that  his 
notes  should  be  correct.  But  with  what  difficulty  this  is 
accomplished  when  an  inexperienced  junior  gets  out  a  detail 
here  and  a  detail  there  and  mixes  them  up  with  wrong 
events  and  dates,  leaving  the  judge  to  match  them  as  if  he 
were  playing  a  game  of  "  Patience  !" 

AVliilc  a  witness  is  telling  his  story  in  a  natural  manner 
(which  he  will  generally  do  if  left  to  himself)  and  with  due 
attention  to  the  order  of  time,  counsel  suddenly  breaks  in 
with  some  such  observation  as  this  :  "  One  moment.  What 
was  said  when  you  spoke  to  the  defendant?" 

The  thread  of  the  story  is  immediately  broken  ;  the  wit- 
ness's mind  is  carried  back  like  a  wounded  soldier  to  the 
rear,  and  it  is  some  time  before  he  can  be  brought  to  the 
front  again.  Nor  is  this  all.  The  judge  is  angry  (if  a 
judge  can  be),  and  the  mind  of  the  jury  is  prevented  from 
following  the  course  of  the  narrative.  If  the  question  be 
of  importance,  the  judge's  notes  must  be  altered,  and  prob- 
ably will  be  confused.  Had  the  order  of  time  been  ob- 
served, the  notes  would  have  required  no  correction,  and  it 
is  quite  possible  that  the  subsequent  events  take  a  different 
color  from  the  answer.  Besides  this,  the  breach  of  this 
rule  tends  to  multiply  itself.  The  question  having  be«n  in- 
terposed at  the  wrong  time,  the  judge  asks:  "When  was 
that  said?"  The  witness  becomes  confused,  tries  to  recol- 
lect, and  very  likely  puts  it  in  the  wrong  place  after  all,  is 
reminded  that  that  cannot  be,  is  ordered  to  recollect  him- 
self and  be  careful,  and  so  on,  to  the  confusion  of  every- 
body except  the  opposing  counsel,  into  whose  hands  the  in- 
experienced junior  is  playing.      It  shows  the    necessity   of 


30  HINTS  ON  ADVOCACY. 

every  event  being  placed  in  its  nutural  order,  ;ind  of  every 
material  circumstance  and  conversation  accompanying  that 
event  being  given  in  connection  with  it,  so  that  everything 
is  exhausted  as  the  story  proceeds.  If  this  be  not  done,  the 
client  liad  l)otter  have  been  without  your  services. 

Let  therefore  the  evtnts  be  told  in  the  order  in  which  they 
occurred^  with  the  accompanying  conversations,  if  important 
and  admissible,  and  their  minor  incidents  if  material. 

§  23.  Repetition  of  Phrases  a  Fault. — Another  fault  of 
too  frequent  occurrence  is  the  re[)etition  of  the  phrases  : 
"  You  must  not  tell  us  what  was  said,  but  what  was  done." 
«•  Did  he  say  anything  to  you?  Don't  tell  us  what  it  was." 
The  jury,  who  know  very  little  of  the  rules  of  evidence, 
must  sometimes  think  from  the  tone,  as  well  as  the  lan- 
guage, that  the  counsel  is  afraid  of  something  being  told 
that  M'ould  be  adverse  to  his  case,  and  must  wonder  at  an 
advocate  who  asks  if  somebody  said  something,  but 
anxiously  cautions  the  witness  not  to  tell  what  t  was.  It 
may  be  said  that  the  caution  was  necessary  ;  so  it  might  be  ; 
but  it  need  not  be  made  the  prominent  feature  in  the  exam- 
ination. There  need  not  be  a  fuss  about  it,  as  though  you 
wanted  to  impress  the  world  with  your  vast  knowledge  of 
the  rules  of  evidence.  In  ninety-nine  cases  out  of  a 
hundred,  it  is  obvious  that  something  was  said  ;  the  fact 
will  not  be  disi)uted,  and  a  leading  question  will  pass  the 
witness  over  the  difficulty,  and  not  confuse  his  mind  by 
sending  it  upon  an  inquiry  as  to  why  he  must  not  give  the 
conversation. 

Unless  there  be  a  doubt  as  to  what  an  answer  was,  you 
do  not  require  it  to  be  given  twice.  "  Let  well  alone,"  was 
said  by  a  judge  to  a  junior,  who  was  ^o  enamored  with  a 
witness'  answer  that  he  must  needs  hear  it  again  and  again. 

§  2A.*  Never  Cross-Examine  your  own  Witness. — This 
rule  seemS' remarkably  obvious.  But  it  requires  an  effort 
to  obey  it'nevertheless.  You  will  hear  an  advocate  cross- 
examine  his  witness  over  and  over  again  without  knowing 


LEADING  QUESTIONS.  31 

it,  if  ho  htivG  not  tlio  restruiiiiiig  hund  of  his  leader  to  check 
him. 

Before  Mr.  .Justice  Hawkins,  not  long  since,  a  junior  was 
conducting  a  case,  which  seemed  i)retty  clear  upon  the  l)are 
statement  of  the  prosecutor.  "  Are  you  quite  sure  of  so 
and  so?"  "  Yes,"  said  the  witness.  "  Quite?  "  inquired 
the  counsel.  "  Quite,"  said  the  witness.  "You  have  no 
doubt  ?"  persisted  the  counsel,  thinking  lie  was  making 
assurance  doul)ly  sure.  "  Well,"  said  the  witness,  "  f 
haven't  much  doubt,  because  I  asked  my  wife."  Mr.  Jus- 
tice Hawkins  :  "You  asked  your  wife  in  order  to  be  sure  in 
your  own  mind?"  "Quite  so,  my  lord."  "  Then  you  had 
some  doubt  before?"  "  \Yell,  I  may  have  had  a  little,  my 
lord." 

This  ended  the  case,  because  the  whole  <|uestion  turned 
upon  the  absolute  certainty  of  this  witness'  aiind.  Of 
course,  it  is  not  suggested  that  a  fact  necessary  for  the 
ascertainment  of  truth  should  be  suppressed,  and  in  this 
particular  instance  the  learned  counsel  was  quite  right  in 
pressing  the  witness  upon  a  material  [)oint  u[)oii  which  the 
prosecution  rested  ;  but  it  is  no  part  of  an  advocate's  duty 
to  endeavor  to  shake  his  witness'  testimon}'  to  pieces  if  he 
believes  it  to  have  been  honestly  given.  Nay,  more.  A 
cross-examination  of  one's  own  witness  may  most  unjustly 
bring  about  a  disastrous  result.  A  witness  may  get  con- 
fused, and  although  at  first  might  feel  absolutely  positive, 
and  1)0  justly  positive,  yet,  by  the  perpetually  harassing 
him,  he  may  I)egin  to  doubt  whether  he  is  })ositive  or  not, 
and  leave  an  impression  that  he  is  doubtful.  Such  (jues- 
tions  as  :  "Are  you  quite  sure,  now?  Are  you  certain?" 
are  cross-examination,  and  do  not  fall  properly  within  tlie 
scope  of  an  examination-in-chief. 

§  25.  Leading  Questions. — Leading  a  witness  in  material 
matters  is  a  blunder  which  is  not  likely  to  be  permitted  l)y 
your  opponent ;  l)ut  if  he  do,  it  is  generally  a  disadvantage. 
Evidence  that  is  given  in  answer  to  leading  questions  is  of 
the  weakest  character.     The  mere  answers  of  a  witness  are 


HINTS  ON  ADVOCACY. 


nothing  ;  it  is  the  effect  they  have  that  makes  them  valual)lo 
or  otherwise,  and  a  jury  always  distrusts  evidence  which 
comes  rather  from  tlie  mouth  of  the  counsel  than  that  of 
the  witness.  As  a  matter  of  policy,  therefore,  apart  from 
the  violation  of  the  rules  of  advocacy  or  the  practice  of  the 
courts,  leading  questions  upon  material  matters  should  be 
carefully  avoided. 

§  26.  Exaniining  from  Brief. — Except  under  particular 
circumstances,  an  advocate  should  not  examine  from  his 
brief.  The  most  complicated  story  is  best  unraveled  in  the 
ordinary  and  natural  maimer.  Your  brief  is  a  statement  of 
facts  for  your  information,  not  for  that  of  the  witness.  Let 
him  tell  his  own  storj  with  as  little  interruption  from  you 
as  possible,  and  in  all  probability  he  will  tell  it  well  ejiough 
if  you  do  not  confuse  him  with  your  brief.  If  you  find  he 
is  omitting  a  material  point,  your  duty  will  be  to  bring  him 
to  it  at  once. 

§  27.  Going  too  Fast.  —  There  is  nothing  more  common 
with  beginners  than  going  too  fast.  They  are  frequently 
told  by  the  judge  that  they  forget  that  he  has  to  take  down 
the  answers  ;  and  the  im[)()rtance  of  your  evidence  looking 
\vell  on  the  judge's  notes  cannot  be  exaggerated  when  you 
are  supporting  or  showing  cause  against  a  rule  for  a  new 
trial.  When  the  evidence  is  coming  well,  there  is  no  doubt 
n  great  temptation  to  let  it  run  too  fast ;  but  you  must  take 
care  it  does  its  proper  work,  otherwise  it  will  be  like  a  rush 
of  water  which  shoots  over  the  mill-wheel  instead  of  turn- 
ing it. 

§  28.  Keeinng  from  Irrelevant  Matter. — But  although  it 
IS  by  far  the  best  to  let  a  witness  tell  his  story  in  his  own 
way  as  much  as  possible,  it  is  absolutely  necessary  to 
prevent  him  from  rambling  into  irrelevant  matter.  Most 
uneducated  witnesses  begin  a  story  with  some  utterly  irrel- 
evant observation,  such  as  if  they  were  going  to  tell  what 
took  place  at  a  fire,  they  will  say,  "  1  was  just  fastening  up 
my  back  door,  when  I  heard  a  shout."  But  when  you  once 
o-et  the  witness  at  the  scene,  the  evidence  will  come  with 
little  trouble. 


TRIFLES  MAY  TUKN  THE  CASE.  83 

§  29.  Trifle fi  may  ''I  urn  the  Case. —  Miracles  are  not  coiii- 
mou  uow^-a-day.s,  and  events  follow  one  another  in  a  natural 
course  ;  and  as  one  is  often  the  cause  and  anotlier  the  effect, 
tho  most  important  results  may  depend  upon  the  merest 
trilie.  Take  the  familiar  "  running-down  case."  Two 
vehicles  come  into  collision,  and  the  respective  drivers  no 
less  so  in  their  evidence.  Each  throws  the  blame  on  the 
other,  and  if  both  were  believed,  there  could  have  })een  no 
accident  at  all,  because  each  Avould  have  been  upon  his 
proper  side  of  the  road,  close  to  the  curb,  with  the  whole 
width  of  the  road  between  them.  The}^  cannot,  therefore, 
both  be  accurate.  Other  witnesses  give  other  impossible 
stories.  The  very  position  of  the  vehicles  after  the  acci- 
dent may  be  a  disputed  point,  and,  therefore,  no  assistance 
to  the  jury.  But  there  may  be  a  very  trilling  scratch  or 
indentation  on  a  wheel  or  a  shaft  which  may  be  all-impor- 
tant, and  what  it  was  produced  by  ma}'^  be  more  important 
still.  Its  direction  and  shape  ma}'-  also  be  material,  and 
will  show  how  necessary  it  is  in  examination-in-chief  to  get 
out  ever}'  fact,  however  trifling,  that  may  be  of  importance 
to  your  case.  An  instance  of  this  kind  occurred  not  long 
since,  when  a  hansom  cab,  proceeding  down  Hegent  street, 
came  in  contact  with  a  brougham  which  was  crossing  at 
right  angles.  The  probabilities  were  all  immensely  in  favor 
of  the  brougham.  It  was  not  likely  the  coachman  would 
drive  a  valuable  horse  across  a  crowded  street  with  such 
utter  recklessness  as  to  dash  into  a  vehicle.  The  lady  in 
the  brougham  said  the  ca1)man  was  inebriated  ;  the  coach- 
man said  he  Avas  di'unk  :  and  the  police  who  took  him  to  the 
station  charged  him  with  being  drunk  and  incapsible.  The 
divisional  surgeon  reported  him  as  ''  the  worse  for  liquor; 
not  unable  to  walk,  but  unable  to  manage  a  cab."  This 
was  an  extremely  strong  case  on  the  part  of  the  brougham, 
and  it  was  a  serious  one,  as  the  valuable  horse  had  to  be 
killed  on  the  spot.  All  the  evidence  was  as  conflicting  and 
contradictory  as  to  the  accident  as  could  well  be,  and  to 
make  it  the  worse  for  the  cabman,  the  gentlemen  he  was 


34    •  HINTS  ON  ADVOCACY. 

driving  were  not  culled  to  give  evidence  on  his  behalf.  He 
had  to  rely  upon  passing  cabmen  and  the  driver  of  a  hearse, 
who  deposed  as  to  pace.  There  was,  however,  in  the  midst 
of  all  this  confusion,  one  point  of  evidence  which  could  not 
be  contradicted.  The  verdict  did  not  depend  upon  the 
*'  inebriety  "  or  the  "  drunkenness  "  of  the  cabman,  or  the 
pace  of  the  cab,  or  the  evidence  of  the  witnesses,  but  upon 
a  small  scratch  which  had  been  made  on  the  off-side  of  the 
cab  by  the  point  of  the  shaft  of  the  brougham.  On 
this  piece  of  evidence  alone  there  was  a  verdict  for  the 
defendant. 

§  30.  Interrupting  the  Witness. —  Another  common  error 
is  worth  noting,  and  that  is  the  not  permitting  a  witness  to 
finish  his  answer,  or  tell  all  he  knows  on  a  material  matter. 
In  the  very  midst  of  an  important  answer  a  witness  is  very 
often  interrupted  by  a  frivolous  question  upon  something 
utterly  immaterial.  This  seems  so  absurd  on  paper  that  it 
needs  an  example :  A  witness  is  giving  an  answer  when 
some  such  question  as  this  is  interposed :  "  What  time  was 
this?"  or,  "Had  you  seen  Mr.  Smith  before  this?"  A 
question  is  often  left  half  answered  by  such  interruptions, 
the  better  half  perhaps  being  untold.  "  He  never  asked 
me  about  that,"  says  the  witness  after  the  case  is  over ;  or, 
"  I  could  have  explained  that  if  he  had  let  me."  If  the 
question  be  material,  by  all  means  let  the  answer  be  taken 
down  ;  if  immaterial,  it  ought  not  to  have  ])een  asked  ;  but 
once  asked,  you  had  better  have  the  answer,  lest  something 
should  be  inferred  against  jou. 

§  31.  How  Not  to  Examine — Another  Illustration. —  I 
will  give  another  instance  how  not  to  examine  a  witness.  It 
is  an  almost  verbatim  report  of  what  actually  occurred  re- 
cently at  a  trial  when  an  inexperienced  junior  was  examin- 
ing a  witness. 

Q. —  "  Were  you  present  at  the  meeting  of  the  trustees 
when  an  ao-reement  was  entered  into  between  them  and  the 
plaintiff  ?— Answer,  '  *  Yes. ' ' 

Q. — "  Will  you  be  kind  enough  to  tell  us  what  took  place 


HOW  NOT  TO  EXAMINE.  35 

between  the  piirties  with  reference  to  the  agreement  that 
was  then  entered  into  between  them?"  clj 

This  is  an  instance  of  verbosity,  which  shows  that  in 
putting  questions,  hjng-drawn  sentences  should  be  avoided. 
The  more  neatly  a  question  is  put,  the  better,  as  it  has  to 
be  understood  not  only  by  the  witness,  but  by  the  jury. 
All  that  was  necessary  to  be  asked  might  iiave  been  put  in 
the  following  words  ; — 

'*Was  an  agreement  entered  into  between  the  trustees 
and  the  plaintiff?" 
"What  was  it?"     ' 

It  will  appear  even  more  strange  perhaps  to  the  reader  to 
say,  that  after  the  answer  was  given  hy  one  witness,  which 
was  all  that  was  necessaiy  to  prove  that  part  of  the  case, 
the  question  was  repeated  to  another  with  additional 
verbiage. 

"  Will  you  be  good  enough  to  inform  us  what  took  place 
upon  that  occasion  between  the  parties,  as  nearly  as  you 
can,  with  reference  to  the  agreement  that  was  then,  as  you 
have  stated,  entered  into  between  them.  Please  tell  us, 
not  exactly,  but  as  nearly  as  you  can,  in  your  own  way, 
what  his  exact  words  were?" 

It  is  obvious  that  if  an  advocate  would  take  as  much 
trouble  to  study  advocacy  as  a  boy  does  to  learn  the  multi- 
plication table,  such  a  question  would  no  more  be  asked  at 
the  bar,  than  a  boy  of  twelve  would  find  out  how  many 
nine  times  nine  are  by  counting  them  on  his  fingers. 

There  is  no  doubt  that  the  time  of  the  jury  is  frequently 
wasted  to  an  unwarrantable  extent  from  a  want  of  knowing 
how  to  examine  a  witness-in-chicf.  To  frame  a  question 
well  is  a  most  important  matter  ,  and  this  can  only  be  done 
by  careful  study.  Practice  alone  is  not  enough,  and  indeed, 
will  do  very  little  towards  effecting  this  object ;  it  is  more 
likely  to  confirm  tendencies  to  verbosity  than  to  diminish 
them.  I  am  speaking  now  of  length  of  questions,  and  not 
of  the  time  in  putting  them.  It  is  a  very  little  fault  to  be 
slow    in   this  particular,   provided  they  are  put   well   and 


3()  HINTS  ON  ADVOCACY. 

tersely.  It  is  a  far  greater  fault,  and  a  more  dangerous 
one,  to  be  impetuous:  more  tantalizing  to  judge  and  jury, 
and  more  I'uinous  to  the  interests  of  your  client.  You  had 
better,  if  you  have  a  case  at  all,  be  too  slow  with  a  Avitness 
than  too  fast.  If  his  evidence  be  necessary,  or,  as  is  some- 
times the  case,  unavoidable,  you  must  call  him  ;  if  called, 
you  should  examine  him  as  though  you  believed  what  he 
says.  If  you  are  afraid  of  the  cross-examination,  that  can 
be  no  excuse  for  slovenh'  and  slurring  examination-in-chief. 
You  need  not  cross-examine  your  oAvn  witness  ;  but  if  you 
are  to  examine  him  at  all,  do  so  boldl}^  and  not  as  if  you 
distrusted  him.  If  in  cross-examination  he  brings  you  to 
the  ground,  the  fault  will  not  be  yours.  You  need  not 
blush  to  lose  a  case  which  3'our  witnesses  cannot  support. 
A  worse  thing  may  happen  to  a  client  than  losing  a  bad 
case — he  may  win  it. 


CROSS-EXAMINATION . 


37 


CHAPTER  III.— The  Cross-Examination. 


SECXrON. 

32.  Dangers  of  Cross-Exami na- 

tion. 

33.  One  Mistake  may  be  Fatal. 

34.  Strengtliening    j'onr    Oppo- 

nent's Case. 


SECTION. 

35.  Pressing  a  Reluctant  Witness. 
:5G.  Preserving  your  Temper. 

37.  Studying  a  Witness"  Motives. 

38.  AVhen  not  to  Cross-Examiue. 

39.  Conclusion. 


Next  to  examiniitioii-in-chief ,  nothing  is  more  important 
or  difficult  in  advocacy  than  cross-examination.  It  is  infi- 
nitely the  most  dangerous  branch,  inasmuch  as  its  errors 
are  almost  always  irremediable.  It  is  in  advocacy  very  like 
what  "  cutting  out  "  is  in  naval  warfare,  and  you  require  a 
good  many  of  the  same  qualities ;  courage  with  caution, 
boldness  with  dexterity,  as  well  as  judgment  and  discrimi- 
nation. You  must  not  go  too  steadily  and  with  too  direct  a 
course,  lest  the  enemy  shoidd  measure  your  distance  too 
accurately,  and  taking  too  steady  an  aim,  sink  you  with  a 
single  shot.  Nor  must  you  loiter  too  long  in  a  place.  You 
must  circumvent  a  good  deal,  firing  a  shot  here  and  a  shot 
there,  until,  maybe,  you  can  catch  your  adversary  unawares 
and  leap  on  board.  It  has  been  likened  to  a  two-edged 
sword,  but  it  is  infinitely  more  dangerous  than  that.  It  is 
more  like  some  terrible  piece  of  machinery  —  a  threshing 
machine  for  instance  —  into  which  an  unskilful  advocate  is 
more  likely  to  throw  his  own  case  than  his  opponent's. 

§  32.  Dangers  of  Cross-Examination. —  It  might  be  as 
well,  before  proceeding  to  discuss  the  qualities  necessary  for 


38  HINTS  ON  ADVOCACY. 

a  good  cross-Gxuiiiiner,  to  point  out  some  of  the  dangers 
attendant  on  cross-examination.  "  With  a  view  to  practical 
utility,"  says  Whately,  "  the  consideration  of  dangers  to  be 
guarded  against  is  incomparably  the  most  important,  be- 
cause to  men  in  each  respective  profession  the  beneficial 
results  will  usually  take  place,  even  without  their  thinking 
about  them,  whereas  the  dangers  require  to  be  carefully 
noted  and  habitually  contemplated,  in  order  that  they  nuiy 
be  effectually  guarded  against.  A  physician,  who  had  a 
friend  about  to  settle  in  a  hot  climate,  would  be  not  so 
likely  to  dwell  on  the  benefits  he  would  derive  spontaneously 
from  breathing  a  warmer  air,  as  to  warn  him  of  the  dangers 
of  sunstrokes  and  marsh  exhalations."  The  dangers  of 
cross-examination,  it  may  be  observed,  are  so  subtle  that 
they  lurk  around  the  questions  of  the  most  skilful.  These 
are  like  the  marsh  exhalations  —  invisible  but  destructive  ; 
while  there  be  often  sunstrokes  to  which  the  most  robust 
and  vigorous  often  succumb. 

These  dangers  will  doulitless  be  guarded  against  by  ex- 
perienced counsel  in  every  possible  manner,  and  in  most 
cases  ^varded  off ;  nevertheless  they  are  there,  and  what  has 
been  said  as  to  the  marks  of  a  great  general  will  to  some 
extent  equally  apply  to  the  advocate — "  he  is  the  greatest 
who  makes  the  fewest  blunders." 

§  33.  One  Mistalce  may  he  Fatal . —  A  mistake  in  cross- 
examination  may  be  fatal  to  your  case.  A  single  question 
may  make  an  opening  for  a  flood  of  evidence  which  may 
overwhelm  you.  Suppose  a  conversation  to  have  taken 
place  which  is  not  admissible  as  evidence  in  chief,  but  which, 
if  admitted,  may  have  the  effect  of  prejudicing  the  jury, 
or  of  introducing  matter  otherwise  irrelevant,  but  which, 
nevertheless,  must  in  some  degree  influence  their  minds,  it 
would  be  the  height  of  folly  to  put  a  question  which  would 
admit  it  in  re-examination.  "  Of  course  no  one  would 
think  of  doing  it,"  is  the  obvious  remark;  "there  is  no 
need  to  warn  the  youngest  advocate  against  a  danger  so 
apparf^nt."     No  one  would  tldnk  of  doing  it,  but  it  is  done 


ONE  MISTAKE  MAY  BE  FATAL.  39 

uiithiiikhigly  every  day,  and  is  one  of  the  most  fre(iuent 
blunders  made  by  young  advocates.  It  is  a  danger  very 
often  too  obvious  to  be  noticed. 

In  a  recent  case  a  plaintiff  sued  for  several  sums  of  money 
lent  to  the  defendant  during  a  period  of  five  years.  The 
justice  of  the  claim  to  some  or  all  of  the  several  sums  was 
in  dispute.  The  man  had  advanced  moneys.  Whether  he 
had  lent  all  or  not  was  one  question  ;  whether  he  had  been 
paid  all  that  were  admitted  to  have  been  advanced  was 
another.  The  accounts  were  of  the  loosest  possible  kind, 
and  it  was  obvious  that  a  trifling  circumstance  might  in- 
fluence the  minds  of  the  jury.  It  was  equally  important 
on  the  one  side  to  get  in  evidence  for  the  purpose  of  in- 
fluencing them  and  making  them  believe  that  all  the  moneys 
had  been  advanced  and  were  unpaid  ;  it  was  equally  the 
duty  of  the  defendant,  who  believed  he  had  not  received 
some,  and  had  paid  the  remainder  (a  certain  sum  having 
been  paid  into  court),  to  shut  out  all  that  was  not  strictly 
in  the  nature  of  evidence.  N«w.  it  happened  in  this  case 
(which  was  tried  before  Mr.  Justice  Denman)  that  the  plain- 
tiff had  either  kept  no  account  books  or  had  lost  them.  He 
depended  upon  his  memory  for  his  accuracy  as  to  the 
various  sums  said  to  have  been  lent  and  for  the  dates, 
Avhicli  were  not  only  at  wide  intervals,  but  also,  many  of 
them,  k)ng  ago.  In  examination-in-chief,  he  was  asked  if 
he  had  an  account.  He  said  yes.  Made  when?  Some 
time  ago.  How  made?  From  memoranda  which  were  not 
in  court.     The  account,  therefore,  was  objected  to. 

Now  it  was  quite  possible,  if  that  account  had  been  placed 
before  the  jury,  it  might  have  wrongly  influenced  their 
minds,  and  it  was  right  to  shut  it  out.  The  plaintiff  was 
thrown,  therefore,  upon  the  resources  of  his  memory,  and 
with  regard  to  two  items  only,  he  Avas  toleral)ly  clear  as  to 
the  dates  and  circumstances.  In  cross-examination  he  was 
asked,  "Have  3'ou  any  account  or  memorandum  showing 
the  several  sums  you  claim?"  He  said,  "  Yes,  it  is  here," 
again  producing  the   copy   of  his   acct)unt.     It  was  again 


40  HINTS  ON  ADVOCACY. 

objected  to.  Question  :  "  lii  what  .sums  was  it  advanced?" 
Plaintiff  looked  at  his  document  and  said,  two  sums  of 
twentA^-live  pounds  each,  and  (Jiere  Jtc  iva.s  sto2)ped  as  he  loas 
reading  from  his  memorandum).  Plaintiff's  counsel  then 
claimed  that  the  document  was  in  and  could  l)e  shown  to  the 
juiy.  Mr.  Justice  Denman  held  that  it  was  not  in  evidence, 
and  that  no  question  had  been  asked  respecting  its  contents. 

It  will  be  seen  from  this  —  and  one  illustration  is,  per- 
haps, as  good  as  twent}^  —  that  a  single  question  in  cross- 
examination  might  have  made  that  evidence,  which  by  no 
possibilit}^  could  have  been  so  made  by  the  other  side. 

§  34.  Strengthening  Your  Opponenf s  Case.— Another 
danger  to  avoid  is  that  of  strengthening  your  opponent's 
case  by  eliciting  answers  that  have  more  effect  upon  the 
jury  when  they  come  hy  way  of  cross-examination  than  in 
chief.  A  question  is  sometimes  omitted  fairly  enough,  and 
for  good  reasons,  bj^tlie  counsel  examining  in  chief.  If  the 
cross-examining  counsel  be  inexperienced,  he  will  perhaps 
rush  in  and  get  the  answer  for  his  opponent.  The  greater 
weight  attaching  to  it  need  scarcely  be  pointed  out. 

Again,  you  ma}?^  get  in  a  conversation  that  mixy  be  fatal 
to  3^our  case.  Suppose  the  question  to  be  the  contents  of  a 
lost  will.  A  leo-atee  under  it  mves  the  f()llowin<>-  evidence: 
I  remember  the  fact  of  the  testator  making  his  will.  I  saw 
him  writing  it  and  I  read  it  at  the  time.  I  was  left  a  thou- 
sand  pounds  b}^  it,  and  my  two  brothers  were  left  severally 
the  same  amount.  I  last  saw  the  will  two  months  ago. 
Now,  it  might  1)e  that  the  whole  case  depended  upon  the 
accuracy  of  the  witness'  memory,  or  upon  that  coupled 
with  his  credibilit3^  Plaintiff's  counsel  is  desirous  of  show- 
ing that,  on  the  day  the  wnll  was  made,  the  witness  went  for  a 
doctor,  and  told  him,  at  that  time,  the  contents  of  the  will. 
If  this  statement  could  be  given,  and  it  were  identical  with 
that  made  in  Uie  witness  box  years  after,  it  is  clear  that  it 
would  go  a  long  wa}'  to  establish  the  accuracy  of  the  wit- 
ness's memory  as  well  as  his  credil)ilit3^  But  it  is  not  ad- 
missible   as    evidence    in  chief.       A  question,  however,  in 


PRESERVING  YOUR  TEMPER.  41 

cross-examination  would  admit  every  word.  Nor  does  the 
danger  cease  when  this  witness  leaves  the  box.  The  doctor, 
a  witness  to  the  will,  may  i)e  called.  He  may  not  have  read 
it,  l)ut  an  inadvertent  question  may  enable  him  to  sav  what 
the  last  witness  told  him  on  the  occasion  in  question. 

§  35.  Pressing  a  Rehu-tcud  Witness. —  There  is  another 
danger  not  to  be  lightly  regarded,  and  that  is  of  persisting 
in  pressing  a  question  upon  a  reluctant  witness.  When  you 
find  a  witness  unwilling  to  give  the  evidence  you  seek,  and 
you  have  drawn  him  as  near  to  the  point  as  there  is  any 
hope  of  his  being  drawn  or  driven,  it  is  always  dangerous  to 
attempt  to  urge  him  further.  If  you  have  nearly,  got  an 
aflSrmative,  and  you  press  him  over  much,  you  may  irritate 
him  into  giving  you  a  direct  negative. 

The  dangers  thus  indicated  will  doubtless  suggest  many 
others  to  a  mind  anxious  to  master  the  rudiments  of  advo- 
cacy. They  can  only  be  avoided  b}^  careful  study.  Prac- 
tice itself  is  a  slow  teacher,  and  an  unfortunate  blunder  may 
retard  the  advocate's  progress  in  this  branch  of  learning, 
and  may  lose  him  many  a  client. 

Cross-examination  may  almost  be  regarded  as  a  mental 
duel  between  advocate  and  witness.  The  first  requisite, 
therefore,  on  the  part  of  the  attacking  party  (namely,  the 
advocate)  is  a  knowledge  of  human  character.  This  is  the 
first  requisite,  and  it  is  an  indispensable  one.  But  as  I  sup- 
pose almost  ever}'^  one  conceives  himself  to  be  a  master  of 
this  science,  and  as,  if  he  be  not,  it  is  impossible  by  any 
means  at  my  disposal  to  add  to  his  knowledge  in  that  re- 
spect, I  shall  proceed  on  the  assumption  that  the  reader  will 
api>4-eci  «te  many  observations  which  would  not  be  quite  so 
intelli<>-ible  were  he  ignorant  of  this  profoundest  of  all 
learning. 

§  36.  Preserving  your  Temper. —  It  will  be  clear  that  to 
cross-examine  with  anything  like  success,  the  most  thor- 
oughly good  temper  should  be  preserved.  An  ill-tempered 
advocate  would  be  something  like  a  jibbing  horse,  he  would 
do  everything  but  go  along  smoothly.     On  his  hind  legs  (I 


42  HINTS  ON  ADVOCACY. 

mean  the  advocate)  in  an  instant.  A  calm,  imperturbable 
temper  is  the  very  triumph  of  self-command,  and  one  of  the 
very  foremost  qualities  of  a  good  advocate.  It  is  useless  to 
make  excuses  for  a  bad  temper,  as  sensitiveness,  indiges- 
tion, or  what  not.  Good  temper  is  the  demand  of  your 
client,  and  in  more  justice  to  him  you  arc  ])ound  to  preserve 
it.  Even  if  you  should  be  a  constitutionally  irritable  man, 
you  must  absolutely  conquer  your  irritability  for  the  time 
being.  You  must  never  even  appear  to  lose  your  temper,  for 
no  one  ever  believes  that  a  man  in  the  heat  of  temper  means 
what  he  says.  Allowance  is  always  made  for  this  infirmity. 
But  when  the  jury  Lave  reason  to  make  this  allowance,  the 
chances  are  that  your  case  is  gone  —  in  all  probability  your 
client  also. 

Nor  should  it  be  forgotten  that  nothing  more  quickly  man- 
ifests itself  to  the  jury  than  a  man's  temper.  It  is  almost 
an  instantaneous  betrayer  in  the  home  circle.  The  smallest 
child  perceives  it  in  a  moment.  It  can  not  be  disguised.  It 
is  as  perceptible  as  the  effect  of  a  sudden  breeze  passing 
over  a  smooth  lake.  I  would  sooner  have  a  cause  fought 
by  a  good-humored  plodding  advocate,  than  by  a  brilliant 
and  ill-tempered  one.  In  the  former  circumstances,  if  mv 
case  were  good,  I  could  scarcely  lose  it ;  in  the  latter,  it  would 
be  almost  impossible  to  win  it. 

§  37.  Stridying  a  Witness't^  Motives. — Assuming,  then, 
that  you  have  some  knowledge  of  human  nature,  you  will 
be  al)le  to  divine,  while  the  witness  is  being  examined  in 
chief,  the  kind  of  man  you  lu.ve  to  deal  with.  You  will  de- 
termine whether  he  has  learnt  his  story  by  heart ;  if  so,  it 
is  i)r()bal)ly  not  all  true,  especially  if  it  be  a  long  and  intri- 
cate one.  This,  however,  is  by  no  means  an  unerring  test. 
It  ma}^  be  true  nevertheless.  Many  policemen  learn  their 
evidence  and  give  it  off  verbatim  ;  yet  it  is  more  often  than 
not,  substantially  true.  But  you  will  gather  from  the  wit- 
ness's maimer,  his  mode  of  answering,  his  looks,  his  tone, 
his  lano-ua<rc,  his  verv  irhinces,  whether  he  be  a  false  witness 


STUDYING  A  WITNESS'S  MOTIVES-  43 

or  one  who  is  telling  u  story  partly  true  and   [)artly  false, 
the  most  difficult  of  all  witnesses  to  deal  with. 

But  besides  determining  in  your  own  mind  whether  he  be 
false  or  true,  or  partly  one  and  partly  the  other,  you  will 
also  ascertain  whether  he  has  a  strong  bias  one  Avay  or  the 
other.  If  he  have  a  strong  leaning  to  the  side  of  your  op- 
ponent, you  will  have  the  less  diffii-ulty  in  disposing  of  him, 
because  it  will  be  easy  to  lead  him  on  until  his  bias  becomes 
so  manifest  and  overpowering,  that  the  jury  will  discount 
his  evidence,  and  that  to  so  great  an  extent,  that  if  the  case 
depended  upon  him  they  would  throw  it  over  altogether. 
A  strong  interest  weakens  the  side  on  whi(.'h  it  lies.  It  will, 
therefore,  be  clear  that  in  cross-examining  a  witness  of  this 
kind  it  will  ])e  proper  to  elicit  this  at  the  earliest  oppor- 
tunity. If  it  comes  last,  it  will  be  far  weaker,  because  it 
will  not  altogether  undo  the  effect  which  his  evidence  may 
have  made  upon  the  minds  of  the  jury.  The  interest  a 
witness  has  in  a  case  should,  therefore,  be  shown  early  in 
the  cross-examination,  if  it  has  not  been  made  manifest 
before.  Of  course,  your  opponent  will  not  leave  you  this, 
card  to  play,  if  he  can  avoid  it ;  but  he  cannot  help  your 
overtrumping  him  by  placing  it  more  prominently  before 
the  jury  than  he  would  ever  permit  himself  to  do  ;  and  this  it 
will  lie  your  duty  to  accomplish. 

But  it  may  be  the  witness  has  no  interest.  He  may  never- 
theless be  a  partisan  ;  and  partisanshij)  is  often  stronger 
than  self-interest,  although  the  latter  has  somewhat  erro- 
neously, as  it  seems  to  me,  been  described  as  the  most  pow- 
erful principle  influencing  human  actions. 

You  may  take  it  for  granted  that  if  your  opponent  should 
sometimes  anticipate  you  in  showing  his  witness's  interest 
in  a  (nmse,  he  will  never  be  eager  to  acknowledge  him  a  par- 
tisan. You  will,  therefore,  generally  be  left  master  of  the 
field  in  this  respect,  and  at  liberty  to  choose  your  time,  phice, 
and  mode  of  attack ;  and  so  that  it  be  early,  you  may  do  it 
as  you  like.  In  a  great  number  of  cases  there  is  something 
of  partisanship,  and  you  may  take  it  as  a  rule  that  an  abso- 


44  IIII^TS  ON  ADVOCACY. 

lutelv  u'.ibiased  witness  is  rare.  The  strono;  partisan,  how- 
ever, is  only  produced  by  public  questions,  parochial  dis- 
putes, boundary-  questions,  quasi-political  inquiries,  medical 
cases,  rating  matters,  running-down  causes  and  other  inves- 
tigations, where  the  Avitnesses  seem  naturally  to  take  sides. 
You  should  remember  that  though  a  man  may  go  into  the 
witness  box  under  compulsion,  he  never  gives  his  evidence 
without  a  motive.  It  may  be  a  strong  or  a  weak  one,  but 
it  exists  ;  find  that  out,  and  3'ou  will  be  able  to  do  so  if  3'ou 
watch  and  listen  attentivel3\  The  man  whose  motive  is 
simply  to  speak  what  he  knows,  manifests  it  in  every  tone, 
look  and  word.  You  Avill  not  have  much  difficulty  in  deal- 
ing with  him.  If  you  believe  in  your  own  case,  3''ou  may 
believe  in  this  witness  not  to  injure  it  if  3'ou  are  discreet  in 
examining  him — that  is,  if  you  examine  in  such  a  nuinner 
tlitit  his  answers  cannot  be  misunderstood.  But  what  are  vou 
to  ask  him?  Listen  to  his  evidence  ;  if  it  agrees  with  3^our 
case,  nothing ;  if  not,  note  the  points  that  are  against  you. 
And  in  dealing  with  the  modes  of  cross-examinino-  the  dif- 
ferent  kinds  of  witnesses  further  on,  I  will  endeavor  to 
point  out  the  manner  of  dealing  with  a  witness  who  has  a 
'  pure  motive,  but  whose  evidence  conflicts  with  3'-our  case. 

But  suppose  the  witness  has  some  other  motive  in  giving 
his  evidence.  You  A<^ill  endeavor  to  ascertain  what  it  is.  If 
3'ou  watch  m!nutel3^,  3^ou  will  find  a  difference  in  tone  and 
manner  when  he  is  speaking  more  directly  from  the  particu- 
lar motive.  Suppose  it's  revenge.  Any  point  which  seems 
more  particularh^  to  damage  his  adversary  will  be  laid  stress 
upon.  Any  answer  that  he  makes  which  he  thinks  will 
damage  him,  will  be  uttered  in  a  more  ready  tone  and  with 
evident  satisfaction.  It  will  manifest  itself  in  his  voice,  in 
his  look,  and  his  whole  demeanor.  That,  therefore,  must 
be  stamped  upon  the  mind  of  the  jury  by  3^our  cross-exam- 
ination. But  there  are  subtle  motives,  1)3^  no  means  appar- 
ent to  ever3^  observer,  which  will  nevertheless  be  discovered 
if  3^ou  set  yourself  to  the  task  of  finding  them  out.  And 
whatever  the  motive  be,    there  is  some  ground  work  for 


WHEN  NOT  TO  CltOSS-EXAMINE.  45 

cross-examination,  which  must  l)c  clumsily  administered 
indeed,  if  it  do  not  in  some  measure  help  }'our  case — if  yon 
have  one, 

§  38.  When  not  to  Cross-Examini'. — It  is  a  good  rul(3  in 
cross-examining  a  witness,  never  to  ask  a  question  the  ansiver 
to  ivhich  may  he  adverse  to  your  case,  Nothmg  but  abso- 
lute necessity  should  induce  a  departure  from  this.  There 
are  so  many  ways  of  framing  a  question  or  a  series  of  ques- 
tions, that  it  would  disclose  a  poverty  of  ingenuity  indeed, 
if  you  asked  one  that  might  involve  the  fate  of  your  client. 
It  may  be  said  "  everyone  knows  that."  True  ;  l)ut  strange 
enough,  every  one  does  not  practice  it.  Junior  Inirristers 
constantly  put  questions  and  elicit  answers  dangerous  and 
often  fatal  to  their  case  ;  whereas,  with  the  exercise  of  a 
little  ingenuity,  they  might,  by  small  portions  at  a  time,  as 
if  they  were  enticing  a  shy  bird  with  crumbs,  obtain  little 
by  little  that  which  they  require  as  a  whole.  Too  little  at- 
tention is  paid  to  small  matters  in  advocacy,  the  minutest 
point  being  frequently  the  pivot  upon  which  the  whole  case 
will  turn. 

But  when  you  have  once  got  the  whole,  rememl>er  that 
you  can  have  no  more  ;  and  whether  it  comes  to  you  in 
crumbs  or  slices,  avoid  placing  the  whole  before  the  witness,, 
otherwise  you  may  yet  succeed  in  getting  it  denied  in  the 
lump,  besides  being  involuntarily  led  into  an  argument  with 
the  witness.  If  the  series  of  answers  lead  irresistibly  to 
one  conclusion,  that  conclusion  will  be  obvious  to  the  jury 
without  directing  the  attention  of  the  witness  to  the  fact. 

But  not  only  when  you  are  doubtful  of  the  answer,  should 
this  course  be  adopted,  but  even  ivhen  it  is  necessary  to  your 
case  that  a  particular  answer  should  he  ohtained.  And  I 
would  suggest  it  as  a  good  and  safe  rule,  that  if  you  are 
desirous  of  getting  an  answer  to  a  [)articular  question,  do 
not  put  it.  The  probability  is  that  the  witness  will  know 
your  difficulty  and  avoid  giving  you  exactly  what  you  wish. 
If  not  iiltogether  straightforward  (and  for  such  witnesses 
you  should  always  be  prepared)  he  will  be  on  the  alert,  and 


46 


HINTS  OX  ADVOCACY. 


unless  you  circunivent  him,  will  cvjidc  your  question.  It  is 
in  siu'li  ;i  situation  as  tliis  that  the  skill  of  the  cross-exam- 
iner is  shown.  One  advocate  will  sit  down  battled,  another 
Avill  obtain  all  that  he  requires.  A  series  of  questions,  not 
one  of  tiieni  indicative  of,  })ut  each  leading  up  to  the  point, 
will  aec()m[)lish  the  work.  If  the  fact  be  there,  3^ou  can 
draw  it  out ;  or  if  you  do  not  so  far  succeed,  you  can  put 
the  witness  in  such  a  position  that  from  his  very  silence  the 
inference  will  be  obvious. 

One  of  the  greatest  cross-examiners  of  our  day  advised  a 
pupil,  in  cross-examining  a  hostile  witness  upon  a  point  that 
was  material,  to  put  ten  unimportant  questions  to  one  that 
was  important,  and  when  he  put  the  important  one  to  put  it 
as  though  it  were  the  most  unimportant  of  all.  "And 
when,"  said  the  learned  gentleman,  "  you  have  once  g<)t 
the  answer  you  want,  leave  it.  Divert  the  mind  of  the  wit- 
ness by  some  other  question  of  no  relevancy  at  all,"  There 
is  no  occasion  to  emphasize  an  answer  while  the  witness  is  in 
the  box,  if  it  be  properl}'  put.  The  time  for  that  will  come 
when  you  may  sum  up  or  reply.  If  the  witness  sees  from 
your  manner  that  he  has  said  something  which  is  detrimen- 
tal to  the  party  for  whom  he  has  given  his  evidence  —  unless 
he  be  an  honest  witness  —  he  will  endeavor  to  qualify  it, 
and  perhaps  succeed  in  neutralizing  its  effect.  If  you  leave 
it  alone,  it  may  be  that  your  opponent  may  not  perceive  its 
full  effect  until  it  has  passed  into  the  region  of  comment. 
Nothing  is  more  unskilful  than  repeating  a  question  when 
you  have  obtained  a  favorable  answer. 

Counsel  are  sometimes  so  impetuous  in  cross-examination 
that  they  put  two  or  three  questions  in  rapid  succession 
without  waiting  for  an  answer,  as  though  they  were  admin- 
istering interrogatories.  This  is  an  exuberance  of  inquisi- 
tiveness  which  must  be  restrained,  if  3^ou  really  desire  to 
cross-examine  with  success. 

Besides  avoiding  the  danger  of  eliciting  evidence  which 
may  be  adverse  to  your  client,  it  should  be  remembered  that 
by  cross-examination  a  color  may  be  given  to  that  elicited 


WHEN  NOT  TO  CROSS-EXAMINE.  47 

in  chief,  \rhich  may  not  only  emphasize  it,  but  give  it  the 
appearance  of  evidence  w/u'ch  you  yourself  have  adduced. 
Counsel  should  carefully  avoid  making  his  adversary's  wit- 
ness liis  own  I)V  cross-examination,  as  he  certainly  will  if  he 
obtain  answers  favorable  to  the  (jther  side. 

It  is  a  good  rule  neve?'  to  p>iU  a  question  in  cross-examina- 
tion loithout  being  able  to  give  a  reason  for  it.  Many  young 
advocates  rise  to  cross-examine  without  the  least  idea  of 
what  they  are  going  to  ask,  and  take  the  witness  back  through 
the  evidence-in-chief,  as  though  it  had  not  made  effect 
enough  upon  the  jury.  Nothing  can  be  more  unskilful  than 
this.  "  Cross-examination,"  said  a  learned  judge  to  a 
junior,  "  does  not  consist  in  repeating  in  a  louder  tone  the 
examination-in-chief."  This  is  simply  the  result  of  inex- 
perience and  a  want  of  knowledge  of  the  fundamental 
principles  upon  which  an  advocate  should  proceed.  It  is 
true  he  soon  learns  that  it  is  necessary  to  have  an  object  in 
asking  a  question  ;  but  in  giving  these  hints  I  am  desirous 
of  his  learning  it  at  once,  without  the  painful  experience 
which  comes  of  many  blunders. 

Another  atom  of  advice  I  would  venture  to  give,  is  not 
to  cross-examine  for  explanations,  unless  the  explanation  is 
necessary  for  your  case.  No  doubt  there  is  some  degree  of 
fascination  in  solving  a  mystery,  but  when  you  find  that  the 
explanation  of  it  is  immensely  to  your  disadvantage,  you 
will  not  quite  so  much  enjoy  the  quiet  smile  of  your  oppo- 
nent when  he  finds  that  you  have  cleared  up  something 
which  he  could  not,  and  which  he  has  purposely  left  for  the 
exercise  of  your  ingenuity  and  fertility  of  inquiry.  If  you 
don't  know  whether  the  ice  will  bear,  you  had  ])etter  not 
venture  on  it. 

It  must  not  be  forgotten  that  apart  from  the  nature  of 
the  questions,  the  tone  in  vvhich  they  are  asked  will  not  only 
have  a  great  effect  with  the  jury,  but  with  the'witness  him- 
self. A  cross-examining  counsel  should  always  seem  in 
earnest :  if  ho  have  the  apix-arancc  of  one^who  is  simply 


48  HINTS  ON  ADVOCACY. 

endeavoring-  to  amuse  an  audience,  the  jury  will  quickly 
come  to  the  conclusion  that  he  does  not  believe  in  his  OM'n 
case.  From  first  to  last,  and  in  every  stage  of  the  case, 
you  must  make  it  appear  that  you  really  believe  in  the  cause 
you  are  advocating.  You  may  not,  in  reality,  have  much 
faith  in  it,  but  your  own  opinion  may  be  wrong  ;  and  as  you 
are  representing  the  interests  of  another,  you  must,  at 
least,  appear  to  be  serious.  Manner  plays  a  great  part  in 
advocacy.  Ever}'  one  knows  that  a  question  in  one  tone 
will  induce  an  answer,  where'  in  another  it  will  not ;  that 
the  emphasis  upon  a  particular  WT)rd  may  produce  a  totally 
different  version  from  that  Avhich  it  Avould  cause  if  laid 
upon  another.  But  no  one  can  lay  down  a  general  rule  on 
the  subject  of  style.  You  cannot  make  an  orator  by  ad- 
vice, or  a  skilful  advocate  ;  the  most  one  can  hope  for  in 
o-ivino-  hints  is  to  assist  vouno-  advocates  in  developinir  the 
powers  they  possess,  and  in  pointing  out  certain  dangers  to 
be  avoided. 

§  33.  Conclusion. — That  the  modes  of  cross-examination 
which  I  have  enumerated  are  useful,  is  a  matter  not  of 
speculation,  but  of  experience  ;  that  they  ma}'-  be  useful  to 
others,  I  have  no  reason  to  doubt.  Many  of  these  hints 
may  appear  to  be  commonplace  suggestions,  but  it  is  never- 
theless true  that  commonplace  ideas  more  often  than  not 
come  to  us  only  after  long  experience  or  through  the  kind- 
ness of  an  experienced  friend.  Many  come  after  wearying 
disappointments  and  heartfelt  rebukes.  I  have  noted  these 
down  with  the  hope  of  saving  some  the  weary  and  watchful 
labors  that  so  many  have  undergone.  I  have  nowhere 
attempted  to  throw  out  a  hint  for  the  purpose  of  enabling 
an  advocate  to  confound  or  entrap  the  honest  and  truthful 
witness,  around  whom  every  protection  should  be  thrown  ; 
but  my  endeavor  has  been  to  suggest  modes  of  dealing  with 
the  artful  and  the  vicious,  in  order  that  deceit  should  be 
baffled  and  imposture  exposed.  Having  said  so  much,  I 
would  add  another  word.     Having  studied  your  hardest  to 


CONCLUSION.  49 

learn  how  to  cross-examine,  your  next  lesson  should  bo  how 
to  do  as  little  of  it  as  you  can  ;  you  should  never  cross- 
examine  if  you  can  safely  avoid  it,  and  when  you  do,  let 
your  questions  be  few  and  with  a  purpose.  The  best  cross- 
examiner  is  generally  the  shortest. 

(4) 


50 


HINTS  ON  ADVOCACY. 


CHAPTER  IV. — The  Classes  of  Witnesses. 


SECTION. 

40.  The  Lying  \yitness. 

41.  The  Flippant  Witness. 

42.  The  Dogged  AVitness. 

43.  Tlie  Hesitating  Witness. 

44.  The  Xervous  Witness. 

45.  The  Cunning  Witness. 

46.  The  Hypocritical  Witness. 

47.  The  Witness  Partly  False. 


SKCTION. 

48.  The  Positive  Witness. 

49.  Tlie  Stupid  AVitness. 

50.  The  Ti'utliful  Witness. 

51.  Tlie  Expert  Witness. 

52.  The  Non  mi  ricordo  Witness. 

53.  The  Bullying  Witness. 

54.  The  Swift  Witness. 

55.  The  Female  Witness. 


From  the  subject  of  cross-examinatioa  to  a  study  of  the 
various  classes  of  witnesses  who  ma}^  become  the  subjects 
of  that  ordeal,  the  transition  is  natural.  It  is  superfluous 
to  say  that  the  variety  of  characters  which  may  be  displayed 
in  the  witness  box  is  almost  infinite  ;  for  the  supply  is  drawn 
from  the  inexhaustible  reservoir  of  human  nature  itself. 
The  witnesses  however,  most  usually  encountered  in  prac- 
tice, may  be  classified  under  the  following  heads  :  The  lying 
witness ;  the  flippant ;  the  dogged ;  the  hesitating^  the 
nervous  ;  the  cunning  ;  the  hypocritical  ;  the  witness  partly 
false  ;  the  positive  witness  ;  the  stupid  ;  the  truthful ;  the 
expert  witness  ;  the  non  mi  ricordo  witness  ;  the  l)ully  ;  the 
swift  witness  ;  the  female  witness.  More  than  one  of  these 
characters  are  often  united  in  a  single  person  ;  for  man, 
even  in  the  witness-box,  is  prone  to  "play  many  parts." 
Every  witness  performs  at  least  two  characters — one  on  the 
direct,  the  other  on  the  cross-examination.  The  lying  wit- 
ness lies  straight  through,  but  on  the  cross-examination 
superadds  the  characteristics  of  the  dogged  or  the  flippant 


THE  LYING  WITNESS.  51 

witness  to  his  original  role.  The  witness,  swift  on  his  ex- 
amination-in-chief, is  dogg'cd  or  l)ullying  \\iu'ii  cross-exam- 
ined, and  so  with  most  of  the  others.  Tlie  only  fixed  ex- 
ception is  that  rarissijna  avis,  the  strictly  and  absolutely 
impartial  witness,  always  upright  and  downright,  Avhose 
judicial  mind  will  not  [x-rmit  him  to  waver  a  hair's  breadth 
toward  one  side  or  the  other, 

§  40.  The  Lijinri  Witness. — A  witness  whose  evidence  is 
untrue  must  lie  with  wonderful  skill  if  he  go  through  even 
his  examination-in-chief  without  betraying  himself.  He  is 
the  easiest  of  all  to  dispose  of,  and,  once  discovered  to  the 
jury  in  his  true  character,  will  do  more  harm  to  a  cause  than 
half-a-dozen  truthful  witnesses  will  undo.  The  greatest  in- 
stances in  modern  times  of  this  class  of  witnesses  were  the 
notorious  "  claimant  ''  and  his  supporter  Luie.  I  may  here 
remark  that  the  Tichl)orne  ti'ials  will  well  repay  a  careful 
perusal ;  for  they  afford  illustrious  examples  of  every 
branch  of  advocacy,  and  are  a  mine  of  inexhaustible  wealth 
to  the  aspiring  advocate.  A  lying  witness,  however,  is 
not  always  to  be  disposed  of  by  a  flourish  of  the  hand, 
but  in  most  cases,  if  you  have  had  any  experience,  you  will 
be  able  to  refute  his  statements  by  his  own  lips. 

He  comes  up  with  a  well-concocted  story,  and  tells  it 
glibly  enough.  Now  you  are  well  aware  that  events  in  this 
world  take  place  in  connection  with  or  in  relation  to  other 
events.  An  isolated  event  is  impossible.  The  story  he 
tells  is  made  up  of  events  which,  if  true,  fit  in  with  a  great 
many  other  events,  and  could  not  have  happened  without 
causing  other  events  (u-  infiuencing  them.  If  his  story  be 
untrue,  the  matters  he  speaks  of  will  not  fit  in  with  sur- 
rounding circumstances  in  all  their  details,  hoAvever  skilful 
the  arrangement  may  be.  The  multitude  of  surrounding 
circumstances  will  all  fit  in  with  a  true  stoiy,  Ijecause  that 
is  part  and  parcel  of  those  circumstances  carved  out  from 
them  ;  just  as  the  oddest  shaped  stone  you  could  cut  from 
the  quarry  would  fit  in  again  to  the  i)lace  whence  it  was  taken. 
It  is,  therefore,  to  the  rock,  of  which  it  once  formed  a  ptirt. 


52  HINTS  OX  ADVOCACY. 

that  you  must  go  to  sec  if  the  block  presented  be  genuine 
or  false.  You  must,  in  other  words,  go  to  the  surrounding 
circumstances.  The  witness,  however  clever  he  may  be, 
can  not  prepare  himself  for  questions  which  he  has  no  con- 
ception will  be  put  to  him,  and  if  you  test  his  imaginary 
events  by  com})aring  them  with  real  events,  3'ou  will  find 
the  real  and  tlio  false  could  not  co-exist  in  their  entirety  ; 
there  must  be  a  displacement  of  facts  that  have  actually 
occurred,  which  is  impossible. 

Will  a  lying  story  lit  in?  It  is  certain  it  will  not :  but  it 
may  not  be  possible  to  obtain  an  accurate  view  of  the  sur- 
rounding circumstances  —  that  is  the  princi[)al  difficulty. 
But  you  may  almost  always  get  at  some  of  them,  and  these, 
however  few,  will  answer  your  purpose.  In  cross-examining 
a  witness  who  lies,  you  must  therefore  apply  the  test  of 
surrounding  circumstances,  and  compare  his  testimony  with 
that  of  other  witnesses.  The  latter  will  be  the  severest  and 
the  surest  test,  if  you  apply  it  to  the  smaller  details.  It 
need  hardly  be  said,  that  the  greater  the  number  of  witnesses 
to  prove  a  concocted  story,  the  greater  the  certainty  of  ex- 
posure by  a  skilful  cross-examiner.  The  main  facts  of  a 
story  may  be  so  contrived  as  to  be  spoken  to  by  all  the  wit- 
nesses ;  but  they  can  not  agree  upon  details  which  never 
occurred  to  them,  or  concoct  answers  to  suit  questions  of 
which  thc}^  have  no  conception. 

But  even  in  this  mode  of  cross-examination  you  must  be 
careful  not  to  obtain  an  apparent  corroboration,  where  you 
seek  contradiction.  The  way  to  avoid  this  is  not  to  put  the 
same  question  upon  some  important  piece  of  evidence  to  every 
witness.  If  you  have  got  the  first  contradicted  by  the  second, 
let  the  matter  rest ;  the  next  witness  will  make  a  guess  and 
corroborate  the  first,  which  will  materially  weaken  the  effect 
of  the  contradiction.  By  judiciously  pursuing  this  line,  you 
may  get  all  the  witnesses  to  contradict  one  another.  It  vvas 
the  great  complaint  of  Brougham,  in  Queen  Caroline's  trial, 
that  the  story  was  so  well  concocted  that  two  witnesses  were 
never  called  upon  one  important  fact.     This,  of  course,  was 


THE  LYING  WITNESS.  53 

contrived  so  that  there  should  I)c  no  possibility  of  contra- 
diction. It  is  not  diflicult,  if  tiiere  are  several  witnesses 
telling  an  untrue  story,  to  break  them  down  in  cross-exam- 
ination ;  and  one  of  the  best  instances  I  have  met  with  is  that 
narrated  in  the  story  of  Susannah  and  the  Ellders.  This 
example  of  cross-examination  further  shows  how  necessary 
it  is  that  the  other  witnesses  should  be  "  out  of  court,"  while 
one  is  under  examination. 

It  is  Avlicn  you  have  to  deal  with  an  untruthful  witness 
who  speaks  only  to  one  set  of  facts,  and  stands  alone  with 
regard  to  that  evidence,  that  your  skill  is  put  to  the  test. 
How  are  you  to  shake  his  testimony?  Assuming  that  char- 
acter is  not  altogether  out  of  the  question,  you  will  ascer- 
tain who  he  is,  and  upon  this  point  he  may  not  be  touched  ; 
he  will,  probably,  if  a  stranger,  be  prepared  with  an  answer 
w^hicliAvill  render  futile  all  further  inquiries.  If  you  know 
the  witness  is  a  man  of  bad  character  (that  he  has  been  con- 
victed, say),  your  task  will  be  comparjitively  easy.  But 
even  then,  if  you  are  not  prepared  to  contradict  him  by 
legal  evidence,  he  may  defeat  you  by  indignant  denials. 

It  may  be  said,  "Everybody  knows  that."  True  ;  but  even 
in  putting  questions  as  to  a  witness  having  been  convicted, 
there  is  all  the  difference  in  the  world  between  one  mode 
of  putting  them  and  another.  If  you  do  it  unskilfully,  the 
effect  of  the  surprise  on  the  jury  may  be  loe,t,  and  in  advo- 
cacy surprise  is  a  powerful  emotion  to  enlist  on  your  side. 
An  advocate  who  can  surprise  either  a  witness,  or  a  jury,  or 
his  opponent  bv  a  question,  is  a  formidable  adversary;  but 
you  may  so  unskilfully  put  your  question  as  to  evoke  sym- 
pathy on  behalf  of  the  witness  instead  of  contempt ;  whereas, 
if  your  questions  are  well  asked,  3'^ou  may  not  only  show  that 
he  is  not  to  be  believed  on  account  of  his  previous  charac- 
ter, but  also  on  the  ground  that  his  mode  of  answering  con- 
demns him  as  a  false  witness.  You  may  get  his  conviction, 
in  short,  and  a  lie  at  the  same  time,  which  will  be  a  good 
measure  of  his  character  for  the  jury. 


54  HINTS  ON  ADVOCACY. 

"  For  bringing  to  light  the  falsehood  of  a  witness,"  says 
Wluitcly,  "really  believed  to  be  mendacious,  the  more 
suitable,  or  rather  the  only  suitable  course,  is  to  forbear  to 
express  the  impression  ho  has  inspired.  Supposing  his  tale 
clear  of  suspicion,  the  witness  runs  on  his  course  with 
fluencv  till  he  is  entangled  in  some  inextricable  contradic- 
tion, at  variance  with  other  parts  of  his  own  story,  or  with 
facts  notorious  in  themselves,  or  established  by  proofs  from 
other  sources." 

If  you  know  nothing  as  to  character,  you  must  proceed  to 
test  him  by  surrounding  circumstances,  leading  the  witness 
on  and  on,  until,  encouraged  by  his  ai)parent  success,  he 
will  soon  tell  more  than  he  can  reconcile,  either  with  fact 
or  with  the  imagination  of  the  jury.  At  a  trial  at  Warwick 
some  years  ago,  a  remarkably  well-planned  alibi  was  set  up. 
The  cliarge  against  the  prisoner  was  burgUuy.  An  Ii'isli 
witness  was  called  for  the  defense,  and  stated  that  at  the 
time  the  burglary  was  committed,  the  prisoner  was  with  him 
and  four  or  five  other  persons  some  miles  from  the  scene  of 
the  crime.  The  time  of  course  was  a  material  element  in 
the  case,  and  the  witness  was  asked  how  he  fixed  the  exact 
time.  He  said  there  was  a  clock  in  the  room  where  he  and 
the  prisoner  were,  and  that  he  looked  at  it  when  they  went  in 
and  when  they  left.  He  was  then  told  to  look  at  the  clock 
in  the  court  and  say  what  time  it  was.  The  witness'  stared 
vacantly  for  a  considerable  time,  and  then  said  it  was 
*'  such  a  runi'un  he  couldn't  tell." 

"Can't  you  tell  a  clock?  " 

"  Shure,  sor,  I  cant't  tell  that  un  !" 

What  was  still  more  strange,  the  same  question  was  put 
to  every  witness,  and  there  was  only  one  out  of  some  six 
persons  who  could  tell  what  o'clock  it  was.  And  yet  they 
all  swore  to  the  exact  time  deposed  to  by  the  first  witness, 
and  repeated  the  answer  as  to  how  they  knew  the  exact 
time.  Of  course  the  alibi  was  totally  broken  down,  and 
the  prisoner  was  convicted. 


THE  LYING  WITNESS. 


5") 


Give  your  li:ii-  plenty  of  line,  and  you  will  find  that  his 
tale  of  lies  will  be  proportionately  great.  A  mile  with  him 
will  become  three,  if  you  let  him  think  your  object  is  to  make 
it  less.  Darkness  will  become  "light  as  day,"  and  the 
moon  will  shine  with  the  utmost  splendor  when,  according 
to  the  almanac,  she  is  nowhere.  It  is  impossible  to  tell  how 
far  the  downright  liar  will  go  if  you  only  give  him  a  little 
encouragement.  You  may  not  be  able  to  contradict  hini 
upon  all  points,  but  this  benefit  always  accompanies  his  evi- 
dence, that  exaggeration,  as  a  rule,  requires  no  contradic- 
tion. Let  him  exaggerate  and  color  to  the  full  extent  of  his 
mclination  or  imagination,  and  when  he  has  completed  the 
picture  every  one  will  see  that  it  is  a  monstrosity,  in  other 
words,  no  one  will  believe  a  word  he  says.  "A  liar  is  not 
to  be  believed,  even  when  he  speaks  the  truth."  It  is  an 
old  saying,  but  will  never  be  so  old  as  to  be  worthless. 

But  you  may  get  an  actor  in  the  box,  who  for  a  longtime 
will  conceal  his  true  character.  He  may  l)e  a  man  who  has 
a  spite  against  the  plaintiff,  the  defendant,  or  the  prisoner, 
as  the  case  may  be.  Or  if  none  against  the  parties  to  the 
ivction,  he  may  have  a  very  strong  feeling  against  some  per- 
son interested  in  the  result  of  the  case.  If  you  would  cross- 
examine  to  any  effect,  this  must  be  ascertained.  It  is  the 
very  poiut,  remember,  which  he  will  conceal  if  he  can,  but  it 
is  also  the  very  one  that  you  must  find  oiit  and  expose. 
You  will  [)r()l)ably  detect  it  during  the  examination-in-chief, 
if  you  are  vigilant ;  if  not,  it  must  be  ascertained  in  cross- 
examination.  I  would  ask  you  to  bear  in  mind,  while  on 
this  subject,  that  if  you  want  to  read  a  man's  real  character, 
you  must  look  at  his  mouth  ;  all  the  other  features  may,  to 
a  certain  extent,  be  controlled ;  but  the  mouth  never  can  be 
sufficiently  to  conceal  the  emotions  from  a  quick  observer. 
All  the  passions  seem  to  play  upon  the  lips  ;  and  if  you 
question  the  witness  suddenly  and  somewhat  sharply  upon 
the  subject  that  is  really  most  strongly  operating  upon  his 
feelings  and  inducing  his  evidence,  you  will  perceive  the 
involuntary  motion  of  the  mouth,  which  will  instantly  be- 


56  HINTS  ON  ADVOCACY. 

tray  him.  A  beard,  even,  can  not  altogether  hide  this  won- 
derful index  of  the  mind. 

Dickens,  in  his  magnificent  "Tale  of  Two  Cities,"  says: 
"Any  strongly  marked  expression  of  face  on  the  part  of  a 
chief  actor  in  a  scene  of  great  interest,  to  whom  many  eyes 
are  directed,  will  be  miconsciously  imitated  b}^  the  specta- 
tors." 

So,  if  you  direct  a  witness's  attention  to  those  facts  in 
connection  with  a  case  which  3'ou  suspect  have  strongly 
roused  his  feelings  against  the  plaintiff,  defendant,  or  any 
other  person  interested  in  the  proceedings,  you  will  gather 
from  the  involuntary  expression  of  his  features  whether  3'ou 
are  correct  in  your  surmise  ;  and  what  is  of  still  greater 
importance,  the  jury  will  perceive  it  as  well,  after  you  have 
followed  up  your  question  b}^  another  and  another,  for 
ultimately  concealment  will  be  impossible.  This  is  part  of 
what  is  called  "  the  demeanor  of  a  witness,"  so  often  spo- 
ken of  as  of  such  inestimable  importance  as  one  of  the  tests 
of  a  witness's  truth  or  character,  so  highly  appreciated  and 
yet  so  little  understood  in  its  subtler  significance. 

It  might  be  here  observed,  that  whenever  you  have  once 
caught  your  witness,  do  not  lose  the  benefit  of  the  capture 
by  exhibiting  him  too  ostentatiously.  You  need  not  give 
him  a  second  run  for  the  purpose  of  going  over  the  same 
ground  again.  Having  got  the  answer  you  want,  keep  it, 
and  at  once  go  off  upon  another  point ;  otherwise,  if  you 
get  him  to  repeat  it  for  the  purpose  of  directing  attention  to 
the  good  point  you  have  made,  he  will  qualify  what  he  has 
said,  and  very  likely  unsay  it  altogether  by  some  lying  ex- 
planation. 

§  41.  TJie  I'lipjjant  Witness. — When  a  witness  comes 
into  the  box  with  what  is  commonly  called  a  "  knowing" 
look,  and  with  a  determined  pose  of  the  head,  as  though  he 
would  say,  "Now  then,  Mr.  Counselor,  I'm  your  man, 
tackle  me,"  you  may  be  sure  you  have  a  Flippant  and 
masterful  being  to  deal  with.  He  has  come  determined  to 
answer  concisely  and   sharply;   means  to  say  "no"   and 


THE  FLIPPANT  WITNESS.  57 

**  yes,"  and  no  more;  always  to  be  aceonii)anie(l  with  a 
lateral  nod,  as  much  as  to  say,  "take  that."  But  although 
I  have  used  the  male  pronoun,  the  witness  is  very  often  a 
female.  She  has  come,  to  show  herself  off  before  her 
friends  ;  she  told  them  last  night  bow  she  would  do  it,  and 
feels  quite  ecjual  to  "any  counselor  as  ever  wore  a  wig." 
"She'd  wig  him,  she  would."  No  doubt  this  would  be  quite 
true  elsewhere — l)ut  in  the  witness-l)ox  !  You  must  demol- 
ish her,  my  friend.  There's  a  life  and  death  struggle  in 
this  cross-examination  ;  but  you  must  win. 

I  have  seen  many  a  counsel  put  down  by  such  a  witness  ; 
a  sharp  answer,  with  a  spice  of  wit  in  it,  has  turned  the 
young  advocate  into  a  blushing  boy,  and  utterly  discomfited 
him.  Perhaps  a  laugh  has  been  caused  by  some  imperti- 
nent observation.  The  best  advice  under  these  circum- 
stances is,  first  of  all,  to  make  up  your  mind  not  to  be  put 
down.  No  matter  what  happens,  you  will  sit  down  the 
winner.  But  you  must  preserve  the  most  placid  and  un- 
rutHed  demeanor,  and  above  all  things,  never  reply  upon 
the  witness.  To  be  led  into  a  retort,  unless  it  were  an  abso- 
lutely crushing  one,  would  betray  a  weakness,  and  show 
that  the  witness  was  making  the  running,  not  you.  To 
argue  with  a  witness  is  not  only  to  abandon  3'our  high  post 
of  vantage,  but  to  make  a  bad  impression  on  the  jury. 
You  are  no  longer  the  advocate,  but  are  reduced  to  the 
level  of  an  ordinary  disputant.  Argument  is  not  cross-ex- 
amination ;  the  time  of  incubation  is  not  yet.  You  will  be 
able  to  see  what  you  will  make  of  the  evidence  by-and-by  ; 
at  present  it  is  your  duty,  by  questions,  to  get  as  much  us 
possible  in  j^our  favor,  or  to  destroy  as  much  as  possi])]e 
that  which  has  been  given  against  you. 

In  dealing  with  this  class  of  witnesses,  an  advocate 
should  carefully  abstain  from  administering  any  rebuke,  or 
attempting  "  to  put  the  witness  down."  His  object  should 
be  to  keep  her  up  as  much  as  possible,  to  encourage  that 
fine  frenzied  exuberance  which  by-and-by  will  most  surely 
damage  the  case  she  has  come  to  serve.    A  little  encourage- 


58  HINTS  ON  ADVOCACY. 

ment  will  be  of  more  service  to  you  than  anything  that 
would  tend  to  damp  the  ardor  of  this  flippant  fury.  Be- 
sides, you  will  have  the  opportunity  of  animadverting  upon 
her  evidence  In-and-by,  and  then  you  will  be  enabled  to 
show  by  the  contrast  of  a  quiet  manner  with  her  blatant  and 
irrepressible  demeanor  how  utterly  worthless  her  evidence 
is.  Any  good  effect  which  any  portion  of  it  may  have 
Droduced  will  share  the  condign  fate  of  the  remainder. 

And  it  should  not  be  forgotten  that  contrast  invariably 
has  a  striking  effect  with  hearers.  It  produces  a  feeling 
akin  to  that  of  surprise  ;  and  whenever  this  is  effected,  it  is 
in  favor  of  the  advocate  who  can  produce  it. 

But  there  may  be  a  point  or  two  wdiich  3^ou  may  be 
anxious  to  elicit,  even  from  a  witness  of  this  class  ;  for 
although  her  evidence  on  behalf  of  the  party  for  whom  she 
is  called  ma}''  be  comparatively  if  not  entirel}^  worthless, 
whatever  may  be  elicited  on  your  own  behalf  will  hav€  an 
importance  in  proportion  to  the  degree  of  hostility  mani- 
fested. This  not  only  shows  the  danger  of  calling  any  such 
witness,  but  also  the  necessity  of  taking  every  advantage  of 
the  occasion  when  she  is  called.  1  will  endeavor  to  point 
out  the  mode  of  putting  a  question  in  such  a  case.  You  will 
always  approach  her  as  if  she  were  a  wild  animal,  ready  to 
tear  you  if  she  could  get  you  near  enough.  Therefore,  cir- 
cumvent. You  may  be  sure  she  will  never  give  an  answer 
that  she  supposes  may  be  favorable.  It  is  necessary,  there- 
fore, to  watch  for  a  fitting  opportunity,  and  if  j^ou  allow 
her  to  make  some  particularly  good  hit  against  you  which 
causes  a  laugh,  she  will  be  in  an  ecstacy  of  triumph.  And 
at  the  moment  of  her  triumphant  excitement  is  the  time  to 
put  in  your  question  ;  but  it  must  not  be  done  as  though 
jou  thought  it  a  matter  of  importance,  but  rather  as  though 
you  were  putting  it  for  the  purpose  of  turning  off  the  laugh 
against  you.  While  off  her  guard,  if  your  question  be  well 
worded,  the  answer  will  slide  from  her  flippant  tongue 
before  she  is  aware  or  has  had  time  to  consider  its  effect. 
But  having  got  it,  pass  away  from  the  subject  instantly  bj 


TIIK  DOGGED  WITNESS.  59 

putting  iinolher  question  of  no  importance  or  relevancy 
"whatever.  This  is  a  hint  for  which  I  am  indebted  to  an 
esteemed  friend,  who  thinks  the  proper  study  of  an  advo- 
cate is  advocacy,  and  who  found  in  repeated  instances  that 
this  mode  was  pursued  l)y  one  of  the  greatest  cross-exam- 
iners of  our  time.  It  has  also  heen  confii'med  by  my  own 
observation.  You  will  lind  your  advantage  in  this  witness's 
trium[)h. 

§  42.  The  Dogged  Witness. —  The  dogged  witness  is  the 
exact  opposite  of  the  one  I  have  just  been  dealing  with.  He 
will  shake  his  head  rather  than  say  no.  As  much  as  to  say : 
*'  You  don't  catch  me.  You  see  him,  gentlemen,  and  you 
see  nic.  I'm  up  to  him."  He  seems  always  to  liave  the 
fear  of  perjury  before  his  eyes,  and  to  know  that  if  ho  keeps 
to  a  nod  or  shake  of  the  head,  he  is  safe.  He  is  under  the 
impression  that  damage  the  case  he  must,  whatever  he  says. 
*'  A  still  tongue  makes  a  wise  head,"  has  always  been  his 
maxim.  How  are  you  to  deal  with  him?  If  he  has  said 
nothing  against  your  case,  you  will  ot  course  leave  him 
alone — always,  unless  you  Avish  to  draw  something  from  him 
in  its  favor.  If  you  cross-examine  at  all,  vou  must  beware 
of  letting  him  think  that  you  have  any  design  of  "  catch- 
ing him."  Most  witnesses  think  this.  And  such  a  witness 
as  we  now  have,  looks  upon  the  learned  counsel  about  to 
cross-examine  him  with  similar  feelings  to  those  of  the 
little  boy  whom  a  big  ])oy  kindly  asks  to  be  permitted 
to  "show  him  London;"  a  personally  conducted  tour 
which  consists  in  the  person  showing,  holding  the  l)oy  heels 
upwards  until  the  tourist  declares  he  sees  St.  Paul's.  In- 
sinuation will  help  you  with  this  witness.  But  carefully 
avoid  asking  for  too  much  at  the  time.  Get  little  an- 
swers to  little  questions,  and  you  will  tind  as  a  rule  that 
answers  are  strung  together  like  a  row  of  beads  within  the 
man  ;  and  if  you  draw  genth',  so  as  not  to  break  the  thread, 
they  will  come  Avith  the  iftmost  ease  and  without  causing 
the  patient  the  slightest  pain.     In  fact,  till  he  hears  you 


60  HINTS  ON  ADVOCACY. 

sum  up  his  evidenco,  he  will  have  no  idea  of  ■what  he  has 
l)een  eased. 

This  witness,  without  being  untruthful,  is  always  hostile  ; 
he  looks  on  you  as  a  dangerous  man,  a  sort  of  spy.  He 
will  ])e('ome  bolder  as  he  proceeds,  especially  if  you  prove  to 
him  that  you  are  by  no  means  the  terrible  man  that  he  at 
lirst  thought  you.  And  the  best  way  to  foster  this  idea  is 
to  accustom  him  to  answer.  Let  him  see  that  your  ques- 
tions are  of  the  simplest  possible  kind  ;  even  so  simple  and 
so  easiW  answered  that  it  seems  almost  stupid  to  ask  or  an- 
swer them.  "Of  course,"  he  says  to  one;  "  Certainly," 
to  another  ;  "No  doubt  about  that,"  to  a  third,  and  so  on. 
Presently  you  slip  one  in  that  is  neither  "  of  course  "  nor 
"  certainly,"  and  get  your  answer.  He  may  be  an  old  man 
(generally  is),  and  the  subject  of  inquiry  a  right  of  way. 
He  may  ])e  the  "  oldest  inhabitant."  What  are  the  moving 
springs  of  human  conduct?  Love  of  justice,  which  he  has 
known  from  a  boy  upwards,  and  his  father  before  him,  as 
"  right  is  right,  and  wrong  is  no  man's  right."  Self-appro- 
bation, or  vanit}-,  wlpch  in  him  signifies  "  a  wonderful  mem- 
ory," w^hich  has  been  the  talk  of  the  neighbors  for  years. 
The  knowing  more  of  by-gone  times  than  any  man  or  woman 
in  the  place.  Selfishness,  called  by  him  his  "  uprightedness 
and  downstraightedness  ;  "  independence  of  spirit  —  "he 
cares  for  no  man,  and  always  paid  twenty  shillings  in  the 
pound."  These  are  the  vulnerable  points  in  his  armor  ;  and  if 
you  can  not  thrust  an  arrow  in  at  any  ojf  these,  you  had  bet- 
ter hang  up  your  bow,  for  you  will  never  make  a  good 
archer.  He  will  answer  anything  if  you^appeal  to  his  mem- 
ory, or  if  your  question  magnifies  his  independence  of 
spirit,  or  brings  out  in  all  its  dazzling  luster  his  "  upright- 
edness and  downstraightedness." 

§  43.  The  Hesitating  Witness.  —  A  hesitating  witness 
may  be  a  very  cautious  and  truthful  witness,  or  a  vcr}'  great 
liar.  You  will  find  this  out  before  you  I,egin  to  cross- 
examine.     In  most  cases  the  hesitating  man  is  considering 


THE  NERVOUS  WITNESS.  61 

what  effect  tlio  iinswcr  will  have  upon  the  case,  and  not 
what  the  proper  answer  is.  By  no  means  hurry  this  indi- 
vidual ;  if  he  is  balancing  the  merits  of  the  case  and  the 
weight  of  his  answer,  and  the  scale  it  should  go  into,  give 
him  time,  and  in  all  probability  he;  will  put  it  into  the  wrong 
one  after  all.  If  he  should,  leave  it  there  by  all  means.  I 
advise  this,  because  I  have  so  often  seen  young  advocates 
take  it  out  again  and  put  it  into  the  other.  Besides,  your 
giving  him  plenty  of  time  will  tend  to  confuse  him — as  con-, 
fused  he  should  be,  if  he  is  not  honest.  He  can't  go  on 
weighing  and  balancing  effects  without  becoming  bewildered 
as  to  their  probable  results.  Nor  is  there  any  danger  in 
being  slow  with  this  witness  ;  he  must  be  a  much  sharper 
man  than  you,  and  must  know  better  than  you  what  is 
passing  in  your  mind,  if  you  do  not  at  last  contrive  to  land 
him  in  an  unknown  region  where  perchance  there  be  giants, 
hobgoblins,  and  what  not. 

But  your  cross-examination  should  by  no  means  lag  on  his 
account,  nor  should  its  pace  ^slacken.  Slow  questions  are 
usually  feeble.  With  this  witness  they  should  be  asked  at 
the  ordinary  speed,  or  if  anything,  perhaps  a  trifle  quicker, 
so  that  the  hesitation  may  be  more  apparent  and  the  blun- 
dering more  complete. 

§  44.  The  .JVervous  Witness. — A  nervous  witness  is  one 
of  the  most  difficult  to  deal  with.  The  answers  either  do  not 
come  at  all,  oi-  they  tumble  out  two  or  three  at  a  time  ;  and 
then  they  often  come  with  opposites  in  close  companion- 
ship. A  "Yes"  and  a  "No"  together,  while  "  I  don't 
know"  comes  close  behind.  "I  believe  so,"  or  "I  don't 
think  so,"  is  a  frequent  answer  with|this  witness,  as  it  is 
with  the  lying  and  the  truthful  witness.  They  are  all  par- 
tial to  this  expression,  but  all  from  different  and  opposite 
motives. 

You  must  deal  iicntly  with  this  curious  specimen  of  hu- 
man nature.  He  is  to  be  encouraged.  It  is  no  use  to  bray 
him  in  a  mortar.  Counsel  often  get  irritable  and  petulant, 
and  ask  such    questions   as    these:     "Pray    what    do   you 


{j2  hints  on  advocacy. 

mean?"  "You  siiy  yes  and  no  in  the  same  breath." 
"Will  A'ou  be  good  enough  to  explain  to  those  gentlemen 
what  you  moan?"  This  is  bad,  and  "  those  gentlemen  " 
o-enei-illv  dislike  the  soft  sawder  imiilicd.  Some  connsel 
may  not  know  it,  but  the  fact  remains  that  they  injure  their 
clients  by  observations  of  this  kind.  Besides,  the  rebuke 
and  the  oblique  flattery  to  the  jury  do  not  produce  the  effect 
of  restoring  the  witness  to  flrmness  or  self-possession.  You 
should  bear  in  mind  Avith  this  as  with  all  witnesses,  that  the 
smallest  point  you  can  extract  in  your  favor  is  worth  all  the 
trouble  you  may  be  put  to  in  obtaining  it.  You  should  deal 
as  gently  with  a  weakness  of  this  kind,  as  you  would  with  a 
shyinsv  horse  ;  pat  him  and  humor  him,  while  j^ou  accustom 
him  to  face  the  dreaded  object,  which  is  your  learned  self. 
The  nervous  witness,  like  all  others,  is  either  to  be  cross- 
examined  or  not ;  if  he  be,  you  must  do  it  Avithout  driving 
him  into  such  a  state  that  his  answer,  hoAvever  favorable, 
will  have  no  value  in  the  eyes  of  the  jury  ;  and  this  Avill 
surely  be  the  effect  of  your  agitating  him  in  the  manner 
indicated.  Endeavor  to  quiet  his  nerves  if  you  think  you 
can  obtain  anything  from  him  that  may  serve  your  case  ;  if 
not,  leave  him  alone  altogether. 

§  45.  The  Cunning  Witness. — The  cunning  Avitness  must 
be  dealt  Avith  cunningly.  Humor  would  be  mere  pastime, 
and  straightforAA^ard  questioning  out  of  character  Avith  him. 
But  by  Avay  of  contrast,  and  for  that  only,  straightforward- 
ness may  not  be  out  of  place  Avith  the  jury.  Whatever  of 
honesty,  Avhether  of  appearance,  manner,  tone  or  language, 
contrasts  Avith  the  vulgar,  self-asserting,  and  mendacious 
actinjr  of  this  Avitness,  aa^II  tend  to  destroy  hini.  It  Avill  be 
the  antidote  to  his  coarse  poison.  It  is  strange  but  true, 
that  no  man  can  be  what  is  usually  understood  as  a  "  cun- 
ning person,"  and  conceal  the  fact.  He  is  not  really  a 
shrewd  man,  but  only  thinks  he  is,  tries  to  be,  and  above 
all,  Avishes  to  be  thought  so.  He  always  pretends  that  he 
has  some  deep  and  hidden  meaning  in  Avhat  he  says  and 
does,  which  no  amount  of  skill  or  perception  on  your  part 


THE  HYPOCRITICAL  WITXESS.  63 

can  ])ciiotnitc.  II(^  would  !>(>  ;m  "mipostor  to  the  world  if  he 
could,  hut  the  only  person  he  really  imposes  upon  is  him- 
self. Every  one  can  see  that  he  tries  to  ajjpear  what  he  is 
not,  and  that  he  pretends  to  know  a  great  deal  more  than 
he  does.  This  is  the  man  to  show  to  the  jury  in  his  real 
character.  But  it  by  no  means  follows  that,  if  you  do,  they 
will  disbelieve  him  altogether.  They  will  discount  his  evi- 
dence, and  without  some  corroboration  attach  little  weight 
to  it.  If  contradicted  by  a  respectable  witness  or  a  fact  on 
3'our  own  side,  they  will  discredit  him  altogether.  You  will, 
therefore,  leave  him  to  himself ;  he  will  exaggerate  and 
color  in  his  own  vulgar  manner,  utterly  unable  to  perceive 
that  he  is  producing  a  distorted  account  which  no  one  will 
believe. 

If  you  get  this  witness  laughed  at  without  appearing  to 
design  it,  he  will  be  at  your  mercy,  for  vanity  is  his  moving 
spring  also  ;  and  although  he  is  vain  of  those  (jualities 
which  most  men  despise,  he  is  still  vain  and  desires  to  be 
thought  clever.  To  be  laughed  at  for  a  fool,  therefore^ 
will  be  beyond  endurance  ;  his  temper  will  be  lost,  and  his 
cunningly  devised  story  and  impudent  repartees  will  lose 
their  effect.  But  the  laugh  should  appear  to  be  the  result 
of  an  accidental  surprise ;  something  that  he  has  brought 
upon  himself,  and  not  that  you  have  designed  for  him. 

§  4(5.  Tlie  Hypocritical  Witness. —  The  canting  hy})ocrite 
is  not  the  least  pleasing  object  of  creation  when  in  the  wit- 
ness-box, nor  is  he  the  most  difficult  tc  cross-examine.  He 
invariably  speaks  from  the  very  best  and  purest  of  motives. 
His  desire  is  only  to  speak  the  truth  ;  no,  not  mereh^  that, 
but  without  so  much  as  an  apparent  tinge  of  partiality.  He 
has  no  interest  in  the  case  —  no  feeling.  It  is  such  a  pity  it 
could  not  have  been  settled  out  of  court  as  he  proposed, 
himself  to  be  the  arbitrator. 

Here  is  a  good  man  for  you.  It  is  almost  a  pity  that 
necessity  and  a  sense  of  duty  should  compel  you  to  cross- 
examine  such  a  man  at  all.  It  seems  almost  an  insult,  but 
it  is  excusable  on  this  <>Tound  —  thai   his  extreme  disinter- 


64  HINTS  ON  ADVOCACY. 

estedness  :ind  impartiality  might  impose  upon  the  jury,  and 
do  your  client  an  injustice  if  you  did  not.  Now  you  will 
observe  al)out  this  rogue  that  Avhenever  he  approaches  a 
downright  lie  he  shirks  it.  It  is  a  part  of  his  very  character 
to  believe  he  is  an  honest  man.  When  he  conies  to  a  lie, 
therefore,  that  he  dare  not  face,  he  is  like  a  bad  hunter  who 
will  not  leap  the  fence,  but  looks  round  to  see  if  there  be  a 
gap  somewhere  hard  by,  or  a  somewhat  lower  fence  that  he 
may  scramble  over,  and  so  not  do  violence  to  himself  in  the 
event  of  a  mishap.  The  hypocrite  coming  up  to  the  lie, 
says  :  "I  am  not  quite  clear  ;  I  should  hardl}^  like  to  go  as 
far  as  that."  But  he  will  wriggle  over  on  to  the  other  side 
somehow,  if  you  show  him  a  place.  So  if  you  put  it  to  him 
something  in  this  form:  "I  presume  I  may  take  it,  Mr. 
Pecksniff,  that  so-and-so  is  the  case?  "  "  Well,  I  think  you 
ma}^"  Now  he  is  fairl}^  over.  You  will  not  fail  to  mark 
this  characteristic  in  him,  that  whenever  he  begins  to  think, 
to  be  not  quite  sure,  not  clear,  and  to  believe,  and  presume, 
and  so  forth,  he  is  incubating  a  downright  lie.  He  himself 
is  a  lie  that  needs  little  telling.  His  evidence,  which  may 
and  will  be  always  on  the  confines  of  truth,  must  be  closely 
examined  to  see  on  which  side  of  the  boundary  it  really  is. 
If  it  be  on  that  of  falsehood,  it  is  so  very  near  the  truth  that 
you  can  scarcely  distinguish  the  dividing  line,  and  if  it  be 
on  the  other  side,  it  is  equally  near  a  lie.  But  you  can  make 
his  evidence  valueless  by  pushing  him  over  sometimes  on  to 
the  side  of  truth,  and  sometimes  to  that  of  falsehood.  He 
balances  himself  so  nicely  that  a  finger's  touch  is  sufficient 
to  disturb  his  equilibrium,  and  if  he  do  not  always  go  over, 
the  jury  Avill  perceive  his  grotesque  efforts  to  keep  his  posi- 
tion. A  ])ersuasive  tone  and  manner,  somewhat  assimilated 
to  his  own,  as  though  you  were  conscious  that  you  had  to 
deal  with  a  very  good  and  amiable  creature,  who  could  not 
possibly  be  made  to  lie  even  by  means  of  thumbscrews  and 
iron  boots,  and  who  would  rather  be  torn  to  shreds  with  wild 
horses  than  swerve  from  his  integrity,  is  the  most  effectual 
mode  of  dealing  with  this  witness.     He  is  too  excellent  to 


THE  WITNESS  PARTLY  FALSE.  05 

deny  the  truth  if  you  put  it  to  him  in  iufinitesimally  small 
quantities  at  a  time,  in  the  shape  of  simple  leading  (jues- 
tions,  each  one  carrying  with  it  the  shadow  of  perjury, 
which  this  man  will  always  avoid  committing  at  any  cost. 

§  47.  The  Witness  Partly  False. —  The  witness  who  is 
partly  true  and  i)artly  false,  without  hypocrisy,  knowing 
that  he  is  giving  color  to  some  facts,  suppressing  others, 
and  adding  little  ones  to  make  good  measure  for  his  party, 
is  the  most  difficult  of  all  to  deal  with.  The  process  of  sep- 
arating the  true  from  the  false  requires  skill  as  well  as  in- 
genuity and  patience.  You  must  have  a  delicacy  of  touch 
in  manipulating  evidence  of  this  kind,  that  comes  only  by 
actual  practice.  Experienced  advocates  are  frequently  de- 
ceived, and  judges  even  fail  at  times  to  separate  what  is 
true  from  what  is  false.  As  some  diseases  are  beyond  all 
the  remedies  in  the  Pharmacopoeia,  so  this  kind  of  witness 
is  beyond  the  reach  of  any  one  faculty  the  advocate  can 
bring  to  bear  upon  him,  and  sometimes  deties  the  skill  of 
all  the  qualities  combined.  Tact,  ingenuity,  patience,  per- 
ception, judgment,  experience,  are  all  requisite  in  the  high- 
est degree  in  dealing  with  this  witness.  And  you  nmst  bear 
in  mind  that  it  is  not  sufficient  for  yourself  to  know  the 
nature  and  character  of  the  evidence  ;  your  task  will  only 
be  half  accomplished  at  this  point.  There  will  still  remain 
the  more  difficult  one  of  exhibiting  it  to  the  jury  in  the 
same  light,  and  with  the  same  aspect  with  which  it  presents 
itself  to  your  own  mind.  The  jury,  untrained  to  sift  evi- 
dence, will  not  so  readily  detect  imposture  and  deceit  as 
you ;  nor  Avill  they  so  easily  distinguish  between  what  is 
true  and  what  is  false,  when  the  ingredients  are  mixed  up 
cunningly  in  the  evidence  of  an  artful  witness  of  this  de- 
scription. 

If,  however,  you  can  lay  hold  of  any  one  part  and  expose 
an  incongruity  or  an  incompatibility,  you  will   have  accom 
plished  a  great  deal.     Exjjosc  an  attenq^t  at  deception  any- 
where in  a  witness's  evidence,  and  you  have  nearly,  if  not 
quite,  destroyed  it  all.      You  must  watch  carefully  to   find 

.(5) 


(■.(.;  HINTS  OiN  ADVOCACY. 

out  if  Ihcro  be  :i  -want  of  assimilation  in  the  parts  of  the 
story  ;  if  there  ])e  a  disagreement  l)et\veen  some  of  the  false 
parts  and  some  of  the  true  ;  yon  must  aseertain  if  sueh  a 
series  of  facts  can  naturally  exist  together  and  in  connection 
with  one  another,  and  must  cross-examine  for  causes  and 
(effects,  so  as  to  determine  if  these  agree  Avilh  facts  stated 
by  other  MJtnesses.  Men  do  not  galher  •'  ligs  of  thistles,"" 
and  if  vou  tind  the  same  cause  ])i'oducing  o[)posite  effects, 
there  is  falsehootl  somewhere. 

Improbabililies  always  have  great  weight  with  a  jury; 
and  if  you  cross-examine  for  these  in  a  witness  Avho  tells  a 
story  parti}-  true  and  partly  false,  you  may  succeed  in  de- 
tecting some.  Of  course,  much  that  has  been  said  with  re- 
gard to  the  mode  of  cross-examining  one  witness  will  apply 
to  others:  and  it  may  be  that,  apart  from  showing  the  in- 
trinsic weakness  and  impro1)ability  of  the  story  as  a  whole, 
you  mav  l)e  able  to  1)reak  the  witness  down  altogether,  l>y 
showing  that  he  is  (juite  unworthy  of  belief.  If  so,  3'ou 
need  cross-examine  no  further,  unless  you  desire  to  contra- 
dict him  by  evidc^nce  on  your  part. 

The  story  told  by  this  witness  would  resemble  a  neatly 
pai)ered  wall.  On  a  general  glance,  such  as  an  ordinary 
spectator  would  give,  it  would  appear  ])crfect ;  but  a  critical 
examiner  Avould  discover  that  tin;  pattern  was  l')roken  h(>ro 
and  there  to  meet  the  reiiuirements  or  shape  of  the  wall, 
notwithstanding  that  considerable  skill  had  been  employed 
to  make  the  broken  portions  tit  in  so  as  to  deceive  the  eye. 
As  a  whole  it  looks  eomplete ;  examined  in  detail,  the 
])atchwork  is  api)arent ;  the  pattern  is  not  ])i'eserv<'d  in  au 
integral  condition . 

§  48.  T//e  //'oftf/irf  Wilvcss. —  There  is  another  class  of 
witness  which  may  be  mentioned,  and  that  is  the  positive 
witness  (generally  a  female  or  of  female  tendencies).  Tt  is 
usually  very  difficult  to  make  the  witness  unsay  anj^hing 
she  has  said,  however  mistaken  she  may  be  ;  but  you  may 
sometimes  lead  her  b}^  small  degrees  to  modify  her  state- 
ments, or  induce  her  to  say  a  great  deal  more  in  her  posi- 


tiif:  stlimi)  witxess.  (i7 

live  WMV  :  ;m(l  llic  lirciit  deal  more  may  be  <'aj)al)le  of 
coiilradict  ion,  oi-  may  itself  conlradict  what  has  l)ecii  said 
hefoi'e  by  the  same  witness.  If  yon  deal  with  licr  ^kilfnliy, 
slic  will  in  all  |)r()l)ability  bo  <'()ually  positive  about  two  oi- 
three  iuatl(n's  which  can  not  exist  together.  She  is  the 
Avorst  witness  to  inisay  anythini:',  but  the  best  to  lead  into  a 
conti'adiction  of  what  she  has  said. 

§  49.  [Flic  >^lupi<l  WiliK'ss. — Another  class  of  witness 
not  unfre(|nently  met  with  in  coui't  is  the  stu})id  witness. 
There  are  many  kinds  of  stuj)id  witnesses  ;  but  the  partieu- 
hir  specimen  upon  which  I  would  Hx  the  reader's  attention 
is  that  civil  and  agreeable  being  ^v'ho  agrees  with  everybody 
for  fear  of  disagreeing.  He  ])el()ngs  to  no  exalted  rank  in 
society,  you  may  be  sure,  and  is  not  assisted  in  his  worldly 
pursuits  with  a  su])erabundance  of  the  highest  intellect. 
Enough,  [)erhaps,  to  enable  him  to  currycomb  a  horse  or 
wheel  a  barrow.  jt  is  of  no  use  whatever  to  manipulate 
this  evidence  into  downright  contradictions.  The  jury  will 
put  down  oiu'-half  of  the  result  to  the  advocate's  ability, 
and  the  other  half  to  the  witness's  stupidity,  and  unless 
other  reasons  intervene,  will  credit  the  lirst  account  given  l)y 
him  and  laugh  at  the  rest. 

This  witness  is  respectful  \b  a  fault,  and  that  fault  is 
timidity.  Suppose  the  action  to  be  for  trespass  and  injurv 
to  a  horse,  and  the  statement  of  claim  alleo'es  that  the  de- 
fendant  wi-ongfully  took  a  horse  belonging  to  the  plaintiff, 
out  of  the  plaintiff's  stable,  and  r^nle  it  for  a  long  distance 
at  full  speed,  whereby  it  l)ccame  broktm-winded  and  useless. 
Defense  :  [)ermission  to  ride  the  animal  when  not  required 
by  \\\v  plaintiff:  riding  in  accordance  "with  permission,  and 
denial  of  improper  ])ace,  broken-wiudedness,  and  so  on. 
Sprouts,  the  ••  od<J  man,"  is  called  for  the  plaintiff,  and 
says  he  found  the  stal)le  door  open  and  the  horse  gone.  Tie 
"  never  gave  no  l(:i\c  to  take  it,  and  the  horse  came  back 
all  in  a  latluM-  and  broken-wiiKled  iikt'.""  Now  Sprouts  is 
not  so  much  actuated  b}'  a  desire  to  tell  the  truth,  as  by  a 
wish  to  be  agreeai)le  all  round  ;    Sprouts  is  a  man  of  the 


88  HINTS  ON  ADVOCACY. 

Avoild,  and  desires  to  offend  nobody;  above  all,  desires  to 
keep  his  place.  Since  the  day  he  interposed  his  friendly 
oflices  between  Todd  and  his  wife,  he  has  never  interfered 
in  other  people's  business,  and  would  not  have  come  here 
to-day  if  he  had  not  been  obliged.  You  cross-examine  him 
as  follows  : 

•'  It  was  a  fine  morning,  I  think  you  said,  Sprouts?  "  "  Yes  sir,"  says 
Sprouts. 

''  Not  very  wet,  was  it? ''     "  Not  v''/-y,  sir."' 

•*  What  you  call  muggy,  I  think  —  damp  and  close?  "      "  It  was,  sir." 
•'  The  sort  of  wcatlier  to  make  a  horse  perspire  a  good  deal?"    "  Make 
him  what,  sir?  *" 
•'Perspire."     "Prespire!  yes,  it  would,  sir;  it  would  that." 
'•  I  believe  the  horse  has  not  been  clipped?  ""     '•  No,  he  haven't  sir." 
"  He  would  naturally  get  warm?  "     ''  He'd  smoke  a  bit,  sir." 
•'I  think  you  smoke.  Sprouts?"      Sprouts  is  in  a  cloud  at  once  —  en- 
veloped—  you  can  hardly  see  him;   but  what  you  do  see  of  him  is 
grinning  with  the  utmost  civility. 

••  Sometimes,  1  suppose.  Sprouts?  *"  —the  more  you  "  Sprouts  "  him, 
rlie  more  agreeable  he  becomes. 

•'  Were  you  smoking  at  the  time  the  plaintiff  came  up  to  you?  "'  "  I 
believe  I  was,  sir." 

•'And  did  he  not  say  he  was  sorry  he  had  given  the  defendant  leave  to 
take  the  horse,  as  he  was  such  a  regular  madcap  he  didn't  know  where 

he'd  ride  him  to?    Set  a  beggar  on  horseback,  he'd  ride  to Well,  we 

won't  mention  names,  Sprouts.      Did  he  say  that?  "      Sprouts  laughs 
through  the  smoke,  and  begins  to  rub  his  cheek. 
••  Did  he  say  so?  "     "  Something  of  the  sort,  sir,"  saj'S  Sprouts. 
•'  Did  he  say  that? '"     "  Not  all,  sir." 

Judge:  "Which  part  did  he  not  say?"  Sprouts  forgets  what  the 
question  was. 

Counsel :  '•  Did  he  say  the  part  about  madcap?'*     "  lie  did,  sir." 

'•And  that  he  was  sorry?  "     "  He  was  terrible  sorry,  sir,  sure  enough." 

"And  do  you  mean  to  say.  Sprouts— will  you  pledge  yourself  he  did 

not  say,  he  was  sorry  he  had  given  him  leave  to  take  the  horse,  or  words 

to  that  effect?"      "I  won't  say  he  did,  and  I  won't  say  he  didn't.      I 

won't  tell  no  lie  if  I  knows  it." 

'■  I  don't  pledge  you  to  the  very  words.  Sprouts;  but  I  ask  whether  he 
did  not  use  words  to  that  effect?  ""  That  last  "  Sprouts  ''  was  so  in  ac- 
cordance with  the  native  civility  of  the  witness,  that  he  strokes  his  chin 
tenilerly.  and  says  —  "He  might." 

This  is  not  a  ftir-fetched  specimen  of  the  evidence  of  the 
genus  "Sprouts."  lint  ti  cross-cxaniintilion  which  leads  to 
such  results  is  useless.     The  jurv  Avill   ttike  the  evidence  in 


THE  TRUTHFUL  WITNESS.  ^59 

chief  Ji8  true,  ami  will  not  accept  seriously  the  answers 
elicited  by  sucii  a  mode  of  (questioning.  I  have  many  times 
seen  it  fail  in  the  cases  where  weak  :ind  stupid  witnesses 
iiave  been  examined.  The  line  to  take  is  not  tiiat  which 
leads  this  kind  of  witness  into  mere  inane  contradictions  of 
all  he  has  said  before.  With  a  sharp  person  this  would  re- 
sult in  the  overthrow  of  the  evidence  altogether,  Xot  so, 
however,  with  that  of  the  stupid  witness. 

Now  suppose  you  have  had  a  quiet  conversation  with  him, 
just  byway  of  getting  exi)lanations  of  various  things  he  has 
said,  you  will  botli  have  enjoyed  the  few  minutes  of  pleas- 
ant intercourse.  Just  as  you  are  about  to  part,  in  fact,  as 
you  are  sitting  down,  as  a  sort  of  "bye,  bye.  Sprouts,"' 
you  bethink  you  of  the  (juestion,  "  The  horse  is  not  much 
(laiiiaged,  I  hope?''  —  ''No,"  says  Sprouts;  "he's  all 
right  now." 

In  the  case  I  have  su})posed,  the  last  answer  of  the  wit- 
ness must  be  taken  to  really  re[)resent  the  fact.  There  is  a 
way  of  reserving  the  question  you  wish  answered  till  your 
witness  is  in  the  humor  to  answer  it.  Most  friends  are  ami- 
cable when  they  [)urt . 

§  50.  The  7nahj'iil  Witurss. —  The  truthful  witness  has 
been  said  to  be  the  most  difficult  of  all  to  cross-examine.  I 
can  not  help  differing  so  much  from  that  opinion  as  to  say 
that  I  have  always  regarded  him  as  the  easiest  of  any. 
When  I  say  truthful,  I  do  not  intend  to  imply  that  his  evi- 
dence is  necessarily  true.  If  it  were  so,  it  would  be  idle  to 
cross-examine  at  all.  What  I  mean  by  a  truthful  Avitness 
is  one  who  believes  and  intends  his  evidence  to  be  true.  He 
is  the  easiest  to  deal  with,  because  he  does  not  eijuivocate  or 
prevaricate.  He  has  no  secret  meaning,  and  gives  his  an- 
swers readily  and  without  mental  reserve.  He  desires  to 
tell  you  all  he  knows,  and  hiii  credibility,  1  will  assume,  is 
unimpeachable. 

The  tirst  thing  to  ascertain  in  cross-examining  a  witness 
of  this  class,  is  whether  he  has  any  strong  bias  or  prejudice 
in  the  matter  under  inquiry.     One  or  two  carefully  worded 


70  I1INT8  OX  ADVOCACY. 

qucfstious  will   discover  this,  if    you   hiive  not  already  l^>ariil 
it  from  liis  auswor.s  in  cliief .     Suppose,  foi'  exami)le,  he  is  a 
clergyman,  and  the  (|uestion  is  as  to   a  certain  place  of   en- 
tertainment   beinii'   a  nuisance,  either  as    being  badly  eon- 
ducted  or  conducing  to  immorality.     He  tells  you  truthfully 
enough  what  he  has  seen,  and  speaks  with  indignant  or  pa- 
thetic tones  of  the  vicious  example  to  the  inhabitants  of  the 
neighborhood.       In   his  evidence  in  chief  he  will  s[)cak  in 
general    terms,    probably,    and    not   descend    to    particular 
instances;,  but  you  will   learn  by  closely  watching,  whether 
he  has  any  particular  examples  of  debauchery  or  profligacy 
to  depose  to.       I  do  not  mean  that  you  are  to  draw  these 
from  him  if  he  have  any;  this,  of  course,  }^)u  will  carefully 
avoid  ;  but  if  he  has  not  referred  to  particular  instances,  you 
may  safely   proceed  to    lead  him  to  condemn  all  places  of 
public  amusement  of    a   similar    kind.       If   you    lead  him 
gently,  he  will  follow  with  remarkable  docility.     I  have  seen 
this  course  pursued  by  eminent  leaders  with  great  success. 
A  man  who  condemns  all  alike  is  not  the  witness  to  impress 
a  jury  with  the  value  of   his  evidence  in  the  particular  in- 
stance, especially  where  it  is  far  more  a  matter  of  opinion 
than  fact.     Even  fact  itself  may  be  represented  as  so  shock- 
ing by  a  witness  of  this  kind,  as  to  create  laughter  instead  of 
indignation.       I  once  heard  a  highly  respectable  and  pious 
individual  tell  a  bench  of  magistrates  at  quarter  sessions, . 
that  all  dancinii'  licenses  ouo-ht  to   be  taken  away   because 
they  prevented  gentlemen  from  getting  good  housemaids. 
A  ijentleman  described  the    conduct  of    two  individuals  as 
debased  and   disgustmg  ;    when  questioned   as  to  what  they 
were  doing,  he  said  with  great  solemnity  "  he  saw  the  man 
kiss  the  girl  and  hold   her  hand."      On  being  asked  if    he 
had  never  been  guilty  of  similar  conduct  in  his  earlier  days, 
he  declined  to   answer,  and    amid  an  outburst  of   laughtei- 
said,   "  But  the  girl  was  a  Sunday-school  teacher."      This 
not  being  enough  to  produce  the   horrible  effect  he  antici- 
pated, he   threw   into  the  scale,  as  a   final    circumstance  of 


IIIK    IKl    1111  TL   W  ITNKSS.  <  1 

ilepriivity,  the  fact  tliat,  al  llu^  time,  tlio  yoiini^-  niaii  \v:i> 
paving  his  addresses  to  another  young  woman. 

An  instance  of  a  witness  being  broken  down  in  cross- 
examination  l)y  ;i  single  (piestion  occurs  to  me.  She  was 
<loiibtless  a  trutiiful  witness,  and  desirous  of  telling  all  she 
knew.  Ilcr  daughter,  the  prosecutrix,  had  charged  a  man 
with  rape.  Her  evidence,  from  some  cause  or  other,  was 
inishaken,  or  at  all  events  not  sufficiently  so  to  break  down 
the  case  for  the  prosecution.  She  denied  everything  thai 
could  cast  a  doubt  upon  her  own  conduct,  and  spoke  posi- 
tively ui)on  every  point  that  told  against  the  [)risoner.  The 
mother  was  then  called  to  prove  that  the  prosecutrix  had 
promptly  complained  of  the  prisoner's  conduct.  She  was 
<'ross-cxamined  as  to  whether  her  daughter  had  not  made 
similar  complaints  to  her  about  other  men.  She  said  "Yes, 
sure  she  had  ;  she  were  always  complainin"  o'  bein'  raped 
by  one  and  fother  of  "em,  and  that  was  why  she  brought 
the  prisoner  u[)  ;  she  wur  determined  to  make  a  sample  o" 
one  on  'em,  and  wanted  to  show  'em  as  they  nuist  leave  her 
alone."  It  was  as  much  the  manner  of  putting  the  ques- 
tion which  drew  this  answer,  as  the  mode  in  which  it  was 
framed,  which  was  so  effective. 

A  truthful  witness  may  be  called  to  give  evidence,  let  us 
suppose,  in  a  '•  running-down"  case,  and  may  state  posi- 
tively what  he  saw.  It  is  almost  too  obvious  to  remark 
that  von  must  cross-examine  as  to  his  exact  position,  the 
moment  as  to  when  his  attention  was  called  to  a  particular 
occurrence,  his  opportunities  for  observing  what  took  place, 
as  to  when  his  attention  was  subsequently  called  to  the  mat- 
ter, what  wtis  said,  and  in  what  way  his  mind  was  directed 
to  it — in  short,  you  will  test  his  memory  and  his  accuracy. 
It  will  be  strange  if  he  be  not  brought  into  collision  with 
some  other  witness  equally  accurate  l)ut  with  no  less  a  ten- 
dency to  blunder,  or  with  some  material  and  perhaps  undis- 
puted incidents  of  the  occurrence ;  and  though  ever  so 
truthful,  he  may  be  utterly  broken  down. 

Sometimes  a   truthful  witness   will  unconsciously  color  a 


72 


HINTS  ON  ADVOCACY. 


transaction,  if  he  be  closely  connected,  either  by  relationship 
or  friendship,  with  a  party  to  the  action  ;  and  thi^  is  highly 
important  to  remember  in  cross-examining  a  trnthful  wit- 
ness. 

It  frequently  occurs  that  some  circumstance  is  omitted  in 
the  examination  in  chief  (and  this  should  always  be  watched 
for),  which,  if  supplied,  would  give  a  totally  different  aspect 
to  the  transaction  ;  and  this  may  be  the  case  with  regard  to 
the  effect  producible  on  tlie  minds  of  the  jury,  when  it  would 
be  otherwise  as  to  the  mode  in  which  it  would  operate  upon 
that  of  the  witness.  As  3'ou  can  never  tell  what  point  may 
at  any  time  influence  a  jury,  it  is  safe  to  say  that  you  ought 
to  elicit  every  circumstance  that  can  not  operate  to  your 
prejudice.  A  witness's  appreciation  of  the  matters  he 
speaks  to  is  often  extremely  important  to  ascertain.  He- 
may  utterly  fail  to  understand  the  bearing  of  his  own  evi- 
dence, and  may  give  a  totally  erroneous  and  misleading 
version  of  the  facts,  often  mistaking  his  own  construction  of 
them  for  the  events  themselves. 

§  51.  TJie  Expert  Witness, — The  rapid  march  of  science 
and  im})rovement  has  developed  a  type  of  witness  that  in 
the  earlier  historj^  of  the  laAV  existed  only  in  a  rudimentary 
condition,  —  the  expert  witness.  Cuiqiie  in  sua  arte  cre- 
dendum  est,  is  the  maxim  upon  which  it  is  predicated  ;  and 
the  great  increase  and  infinite  variety  of  this  class  of  testi- 
mony are  proof  alike  of  the  material  progress  of  the  coun- 
try, and  the  facility  with  which  the  administration  of  the 
law  adapts  itself  to  new  conditions.  Almost  all  questions 
now  admit  of  expert  testimony,  and  every  grade  of  profes- 
sor, from  the  scientific  savant  and  high  art  dilettante  to  the 
humble  corn-doctor,    depose    professionally  in    court,  and 

opound  ex-cathedra  theories  and  systems.  The  expert 
witness  differs  from  the  ordinary  witness  in  that  the  latter 
must  state  facts  only  ;  whereas,  it  is  the  function  of  the 
former  to  express  opinions,  based,  however,  solely  on  tJie 
facts  developed  by  the  evidence,  and  in  these  opinions  con- 
sists the  value  of  his  testimony.     With  this  sort  of  person- 


THE  EXPERT  WITNESS.  73 

age,  especially  the  higher  scientitic  variety,  the  lawyer  is  at 
a  serious  disadvantage.  The  witness  is  also  a  professional 
man,  professor  of  a  science  of  which  the  counsel  necessarily 
knows  little,  and  in  point  of  fact  seldom  knows  anything 
whatever.  He  stands  before  the  learned  [)undit  "  overpow- 
ered by  a  jargon  more  mysterious  than  his  own,"  in  a  be- 
wilderment not  unlike  that  of  Meg  Merrilies,  the  g}T^y 
fortune-teller,  in  the  presence  of  Mannering  and  Dominie 
Sampson,  as  they  discoursed  with  grave  erudition  on 
astrology. 

As  to  the  examination  or  cross-examination  of  an  "  ex- 
pert," it  is  the  duty  of  the  counsel  to  see  that  the  opinion 
of  the  witness  is  based  upon  the  facts  that  have  appeared  in 
the  evidence  ;  for  these  are  tlie  symptoms  which  it  is  his  func- 
tion to  diagnose.  Experts  of  every  variety  have  pet 
crotchets,  theories  and  systems,  by  which  they  are  exceed- 
ingly prone  to  solve  all  knotty  questions  that  may  be  pre- 
sented in  their  art  or  science,  and  this  they  do  in  perfect 
innocence  unless  restrained  by  the  watchfulness  of  the  court 
or  counsel.  The  chief  advice  to  be  given  to  the  advocate 
on  this  subject  is  of  a  retrospective  character.  Try  to  have 
already  learned  as  much  as  possible  of  the  art,  mystery,  or 
science  of  the  deponent,  and  particularly  of  that  branch  of 
it  which  affects  the  matter  in  controversy.  "A  little 
learning  is  a  dangerous  thing,"  no  doubt;  but  in  such 
a  matter  as  this,  contrary  to  Pope's  assertion,  no  learn- 
ins:  at  all  is  still  more  dangerous.  At  the  very  least 
you  should  have  so  far  mastered  the  definitions  and  techni- 
cal terms,  that  you  can  officiate  as  interpreter  between  the 
jury  and  the  witness  ;  for  the  erudite  man  wall  assuredly  de- 
liver himself  in  the  language  of  his  calling,  in  '*  words  of 
learned  length  and  thundering  sound."  Most  sciences,  be 
it  remembered,  are  as  rich  in  technical  terms  and  as  little 
to  "  be  understanded  of  the  people"  as  the  law  itself.  A 
diligent  preliminary  coaching,  therefore,  will  place  you  in  a 
position    approximating   in    elevation    the    pinnacle    upon 


74  HINTS  OS  ADVOCACY. 

which   the    witness    .stands,   unci    probably  aborts    that    oc- 
cupied hy  your  "  learned  friend  on  the  (ither  side." 

There  is  a  class  of  lawyers,  i)atent  lawyers  and  the  like. 
%vho  make  a  specialty  of  sonic  particular  branch  of  learn- 
ing, a  sort  of  combination  lawyer-scientists  or  scientist- 
lawyers,  to  whom  these  observations  do  not  ai)ply,  except 
indeed  when  they  stray  beyond  the  limits  of  their  bailiwick. 
It  sometimes  happens  that  (outside  of  this  class)  the  coun- 
sel himself  is  an  "  expert  "  as  well  as  the  Avitness,  and  the 
advantage  he  obtains  is  very  notabU".  Professor  Cireenletif 
in  early  life  was  indoctrinated  in  the  mysteries  of  shij)- 
building,  which  was  his  father's  business.  While  at  the 
bar,  he  chanced  to  be  retained  l)y  an  insurance  company  to 
defend  a  suit  for  injuries  to  a  vessel  which  at  the  time  wa.- 
lying  at  the  wharf.  The  (luestion  was  narrowed  to  this; — 
if  the  damage  was  to  the  bottom  of  the  ship,  it  was  Avithin 
the  policy,  and  the  company  was  responsible  ;  if  to  the  side 
of  the  ship,  it  w.'is  caused  by  negligence,  and  the  company 
was  not  responsible.  A  builder  testified  that  the  injury  was 
to  the  bottom  of  the  vessel,  and  that  he  had  furnished  the 
timber  with  which  she  had  been  repaired.  Upon  cross-ex- 
amination he  was  asked  by  Mr.  (Trecnleaf — 

••  III  l)iiil(li!ig  a  vessel,  after  laying  your  keel,  you  secure  to  ir.  with 
iron  bolts  a  row  of  crooked  tiniliers — fl0or-tiinl)ers.  eh?  " 

Alls.     ''Yes."  ^ 

Question.  ••  Then  eonies  a  series  of  tiniher-^  ealled  fiitloek-  — is  tkal 
so?" 

Alls.     ''Yes." 

Question.     '•  'J"l>e  next  abovc^  is  ealled  a  rising  limber  —  in;  il  notV  " 

Ans.    ''Yes.'' 

Question.  "The  next  i>  tlie  naval  tinibei.^  and  ilie  next  siill  tlie  top 
timber —  is  that  correct?  "' 

Ans.     "Yes." 

i^uestion.  "  Now  — on  your  oath  — was  it  a  tloor  timber,  a  futtock.  a 
rising  timber,  a  naval  timber  or  a  top  timber,  that  you  furnished  to  re- 
pair that  vessel?  "^ 

Witness,  reluctantly.     ••  It  was  a  uaxal  limlier." 

This  answer  demonstrated  that  the  vessel  was  injured  in 
the    side,   and   Mr.    Greenleaf  gained    his   case  because   he 


'iHK  i;\iM:i;r  w  iim;.- 


75 


knew  the   (IctiiiU    of    tlic    business   on    w'liicli    the   issue  de- 
pended. 

If,  however,  you  luivi-  not  the  iidvantiigc  of  l)einLi'  :in  ex- 
l)ert  yourself,  it  is  well,  in  exjunining  or  cross-exjunining  an 
^'expert"  Avitncss,  to  beiir  in  mind  lltindet's  advice  to  the 
players,  to  s[)eak  no  more  than  is  set  down  for  them.  It  is 
dangerous  to  travel  outside  of  the  record.  Cleave  to  the 
^eientitie  issue  ;  for  if  you  deviate  from  the  i)reseril)ed 
course,  you  will  assuredly  flounder  into  deep  water  and 
come  to  grief. 

The  most  usual  variety  of  the  expert  witness  is  the  medical 
man.  The  doctor,  like  the  poor,  we  have  always  with  us. 
Like  bad  luck  (and  very  much  like  it),  he  is  everywhere.  He 
administers  the  lirst  soot-tea  to  the  ailing  and  wailing  in- 
fant, and  the  last  ho[)eless  anodyne  to  the  departing  gray- 
heard.  Of  course,  courts  of  justice  cannot  escape  his 
ul)i(iuity,  and  there  he  very  often  delivers  opinions  of  the 
very  highest  importance,  involving  the  lives,  characters,  and 
fortunes  of  the  parties  to  the  suits  in  which  he  testifies. 
The  range  of  subjects  which  fall  within  his  province  is 
almost  as  wide  as  that  of  the  ills  to  which  in  his  regular 
business  it  is  his  duty  to  minister.  Legitinuicy,  age, 
identity,  life  insurance,  mental  alienation,  with  all  its  multi- 
tudinous problems  and  puzzles,  feigned  diseases,  malprac- 
tice, death  natural  or  violent,  suicide,  murder,  poisons  in 
all  the  inlinite  c()mi)lexity  of  toxicological  science — upon 
any  or  all  of  these  grave  matters,  the  medicnl  witness  may 
[)ron()unce  opinions  which  are  justly  entitled  to  great  weight . 
80  close  is  the  connection  of  the  legal  and  medical  profes- 
sions, growing  out  of  these  sul)jects,  that  the  science  ot 
xMedical  Juris[)rudence.  or,  more  proi)erly  I^orensic  INIedi- 
cine,  has  devel()i)ed  from  the  numerous  points  at  which  they 
come  in  contact.  A  diligent  study  of  the  authorities  of  this 
conjoint  i)rofessi()n  ought  to  enable  the  lawyer  to  intelli- 
srentlv  examine  or  cross-examine  the  doctor  on  medical 
points,  and  the  doctor  not  oidy  to  deliver  his  testimony  with 
*  '  good  emphasis  and  discretion,'  l»ut  to  know  something  of 


76 


HINTS  ON  ADVOCA(  Y. 


the  nature  of  legul  evidence  —  what  it  is  proper  for  him  to 
say  of  his  own  motion,  what  he  should  only  disclose  in  an- 
swer to  authorized  (jucstions,  and  what  he  should  retain  in 
the  great  store-house  of  his  knowledge.  How  far  Medical 
Jurisprudence  is  understood  by  the  average  lawj'er  or  doc- 
tor, it  would  be  invidious  to  inipiire  ;  but  whosoever,  of  the 
legal  profession  at  least,  may  l)e  conscience-stricken  or 
humiliated  by  his  ignorance  on  this  subject,  may  take  com- 
fort from  the  fact  that  if  he  knows  anything  whatever 
about  it,  he  knows  a  great  deal  more  of  it  than  did  the 
great  lights  a  hundred  or  so  years  ago.  In  the  first  of  his 
lectures,  delivered  in  1758,  Blackstone  cast  a  sort  of 
dragnet  into  English  society,  demonstrating  that  each  class 
ought  to  study  more  or  less  law,  and  why  duty  and  interest 
re(]uired  it  at  their  hands  ;  but  he  could  think  of  no  other 
or  better  reason  why  the  medical  gentleman  should  know 
any  law,  than  that  it  would  be  well  for  him  to  understand 
how  to  draw  a  will  —  deprecating  in  advance,  however,  ih(- 
obvious  gibe  that  the  probate  of  a  will  was  the  logical 
sequence  of  the  attendance  of  a  ])Iivsician,  (  1  Black.  Com., 
p.  14.)  It  seems  never  to  have  occurred  to  him  that  as 
surgeons  and  physicians  constantl}'  test'fy  profession;! lly  in 
the  courts,  it  might  be  well  for  them  to  learn  a  little  of  the 
laws  of  evidence  and  of  those  laws  which  govcrm  (juestioiis 
of  mental  alienation,  crimes  and  criminal  proeeeding>-. 
Nor,  on  the  other  hand,  did  he  think  to  advise  the  law 
student  in  view  of  p().ssil>le  future  use  to  acMjuire  a  smattei- 
ing  of  Pathology,  Anatomy,  Physiology  and  I  he  like.  The 
law^'crs  of  his  day  did  not  know  the  cen^helUun  from  the 
patella,  nor  the  cutis  vera  from  the  diaphragm. 

The  medico-legal  learning  of  th(i  av(M"age  American  law- 
yer is  usually  a  faint  reminiscence  of  the  law  school,  or  a 
mere  modicum  gotten  up  pro  re  nafa,  and  consequently  he 
stands  in  slippery  places  whenever  he  is  required  to  conduct 
or  defend  a  case  which  ma\'  depend  on  medical  testimony. 
8o  far  as  the  .medical  phase  of  this  matter  is  concerned, 
"  they  manage  these  things  better  in  France."     As  early  as 


THE  EXPERT  WITNESS.  77 

1606,  King  Ilonry  IV.,  of  France,  directed  his  chief  physi- 
cian to  appoint  two  surgeons  in  cacli  city  or  large  town,' 
whose  duty  it  should  be  to  examine  and  report  on  all 
wounded  or  murdered  persons,  and  from  this  nucleus  grew 
up  the  system  of  French  Medical  Jurisprudence. 

The  great  difficulty  with  medical  testimony  is,  that  it  so 
often  gives  an  uncertain  sound.  That  "  doctors  differ"  is 
proverbial.  The  science  is  not  an  exact  one.  Medical 
gentlemen,  although  honest,  intelligent  and  impartial,  are 
prone  to  cherish  crotchets,  to  be  sometimes  dogmatic  and 
didactic,  and  withal  to  indulge  freely  in  a  most  pedantic 
use  of  technicalities,  disregarding  the  advice  of  Sir  W. 
Blizzard,  who  in  one  of  his  lectures  adjured  them  to  "be 
the  plainest  men  in  the  world  in  a  court  of  justice."* 
Hence  it  is  not  wonderful  that  they  frequently  get  up  med- 
ical questions  more  doubtful,  perplexing  and  complicated 
than  the  legal  issues  on  trial.  In  addition,  there  is  a  pro- 
lific cause  of  disagreement  in  the  fact  that  they  are  usually 
required  to  hear  testimony  on  the  facts  ;  to  draw,  without 
time  for  consideration,  professional  inferences  from  that 
testimony,  and  pronounce  at  once  a  medical  opinion  upon 
it.  Beck  complains  (2  Beck  Med.  Juris.  912),  of  the  deliv- 
ery of  the  testimony  as  to  the  facts  viva  voce,  and  says  that 
it  is  the  most  common  cause  of  the  disagreement  of  physi- 
cians in  their  opinions  of  such  facts.    He  is  right,  no  doubt. 

*  The  proclivity  of  medical  men  to  use  hors  de  propos  of  technical  lan- 
guage is  amusingly  illustrated  by  the  following  anecdote : 

"  I  discovered  considerable  echy7nosis  under  the  left  orbit,  caused  by 
extravasation  of  blood  beneath  the  cuticle,"  said  a  young  house  surgeon 
in  a  case  of  assault  at  the  assizes. 

Baron  Bramicell:  "  I  suppose  you  mean  tlie  man  had  a  black  eye?"— 
Scientific  witness:  "Precisely,  my  lord." 

Baron  liramicell:  "Perhaps  if  you  said  so  in  plain  English,  those  gen- 
tlemen would  better  understand  you?"  "  Precisely,  my  lord,"  an- 
swered the  learned  surgeon,  evidently  delighted  that  the  judge  under- 
stood his  meaning. 

This  would  have  been  worthy  of  the  young  saw-bones  who  described 
a  suppression  of  perspiration  as  "an  agghitination  of  the  sebaceous 
follicles." 


78  HINT!-;  ON  ADNOCACY. 

With  :i  mass  of  tcstiinoii}',  confused  and  contradietoiT,  a 
number  of  medical  witnesses  in  a  cloud  as  to  what  has  been 
})roved  and  what  has  not,  two  or  niore  lawyers  who  do  not 
understand  the  ph^'sicians,  it  is  hardly  reas()na])le  to  expect 
that  the  jury,  howcyer  sensible,  could  eyolye  order  out  of 
such  chaos. 

AH  this  should  impress  the  advocate  with  the  absolute 
necessity  of  understanding  his  case  beforehand,  and  es- 
pecially the  medical  [)hasc  of  it.  If  you  go  to  trial  imper- 
fectly i)reparcd  on  the  law  of  the  case,  you  can  possibly 
worr}^  through  safely  by  yirtue  of  j^our  reserved  fund  of 
legal  lore  stored  up  in  your  memory,  ^Yhich  ma}"  jDroviden- 
tially  be  l)rought  to  your  aid  at  the  critical  moment;  Init  in 
this  extra-professional  matter  a^ou  have  no  reserved  fund — 
you  know  nothing  Avhatever  concerning  it,  except  what  yon 
have  learned  for  this  express  purpose. 

If  that  is  inado(|uatc,  3'ou  are  without  remedy. 

§  52.  77ie  non  mi  ricordo  Wifnes-s. — There  arc  two 
varieties  of  the  witness  who  has  forgotten  things  :  one  is 
wicked,  the  other  is  weak.  The  former  cannot  remember 
this,  that  or  the  other  circumstance  adverse  to  the  cause 
which  he  has  espoused,  l)ut  his  memory  is  clear  as  to  the 
other  facts  of  an  opposite  tendenc}'.  Several  notable  his- 
torical specimens  of  this  class  figured  iu  England  upon  the 
trial  of  Queen  Caroline  ])efore  the  House  of  Lords  in  1820. 
They  were  Italians,  and  their  formula  non  mi  ricordo^ 
which,  upon  cross-examination,  was  used  profusely,  passed 
for  a  season  into  common  speech  to  designate  the  deponents 
whose  memory  is  so  conveniently  at  the  disposal  of  the 
party  whioh  they  favor.  The  t3'pe  is  by  no  means  extinct, 
and  still  frc(piently  a])pcars  on  the  stand.  Witnesses  are 
daily  adjured  to  remember  ;  to  //•//  to  recollect  something 
which  counsel  especially  desires  to  i)ut  in  (evidence,  and  on 
the  other  hand  the  «2o.sV  sca/I/inr/  and  indifjnanf  ront/nent.t 
are  made  upon  the  ])artiality  of  the  memory  which  recalls 
so  many  things — all  of  a  kind,  and  refuses  utterly  to  pro- 
duce anvthinii-  whatever — of  another  kind. 


rm:  lu  I,I,^  i.n<;  witnkss. 


7l» 


The  oxliil)iti()U  oi'  iiilinn  luoinory,  In'.  ;i  person  uLiit-'rwisc 
sound  menially  and  i)l)ysicully,  is  plicnoinenal,  and  is  in  itself 
a  badii-e  of  fi-aiid,  so  to  six'ak,  aut lioii/luii-  suspicion  aii«l 
placini;-  the  witness  under  a  cloud.  Il  is  hardly  less  to  his 
di.sei-cdit  ihan  self-contradiction,  and  when  it  i>;  developed 
that  the  witness's  nicnioi-y  is  noi  only  intiiin.  l)nt  very 
capricious  and  partisan,  the  |)rcsuinplion  against  his  ercdi- 
hility  becomes  almost  conclusive.  There  is  no  special  mode 
of  treating  this  sort  of  lying  witness,  except  to  pre.sj>  him 
hard,  di'aw  from  liiin  as  many  vnii  mi  rirordo  answers  as 
possible,  so  that  you  can  argue  from  them  that  he,  wdio  ha.s 
forgotten  so  very  much,  is  not  entitled  to  credit  when  he 
asserts-  that  lu;  remembers  anything  whate\ cr.  The  jury 
may  thus  be  intluced  to  read  his  testimony,  as  the  witches 
say  their  prayers,  backward,  and  conclude  that  the  circum- 
stances so  unaccountably  forgotten  are  facts,  and  those  so 
distinctly  remembeied  are  fabrications. 

The  witnesses  who  are  innocently  of  intirm  memory  an^ 
timid,  cautious,  conscientious  people,  deeply  impressed  with 
the  solemnity  of  an  oath,  determined  to  make  no  mi.stake^ 
and  yet  committing  a  very  grave  one.  They  are  resolved  to 
do  their  duty,  but  fail  utterly  to  perceive  that  theii-  oath 
requires  them  to  tell  the  whole  truth,  and  they  ignore  the 
savinir  expressed  in  the  formula,  "  to  the  best  of  your 
knowledge  and  belief."  They  cannot  remember  on  the 
witnc^  stand  many  things  of  the  truth  of  which,  every- 
where else,  they  could  not  be  more  fully  convinced  if  one 
should  rise  from  the  dead  to  conlirm  it.  Such  Avitnesses 
are  of  little  value,  and  fall  ready  Victims  to  the  truculent 
cross-examiner. 

§  53.  The  Biilli/itiri  Witneiis. —  In  the  backwoods,  rural 
districts,  and  new  settlemeuts  of  the  Uniteil  States,  and 
sometimes  in  the  older  sections  Qf  the  country,  the  advocate 
encounters  another  variety  of  witness — the  bullying  wit- 
ness, lie  is  usually  a  coarse,  ignorant  and  violent  man, 
deeply  imbued  with  the  vulgar  prejudices  against  the  pro- 
fession, and    fuUv   convinced    that    the    principal    employ- 


so  HINTS  ON  ADVOCACY. 

ment  of   lawyers,   and    their    chief    delight,  is    by   artifice 
to   entrap  into    contradictions    the    witness    whose   misfor- 
tune it  is  to  fall  into  their  clutches, —  or  failing  that,  to 
browbeat  and  terrify  him  into  such  a  course  of  testimony 
a*  will   suit  their  nefarious  purposes.      When   it  becomes 
necessary  for  such  a  man  to  testify  in  a  court  of   justice, 
being  combative  by  nature  and  habit,  he  takes  the  stand 
with  a  certain  grim  joy  ;  for  like  the  war-horse  he  snuffeth 
the  battle  from  afar,  and  he  resolves  at  the  very  least  to 
give  the  "  whipper-snapper  "  lawyers  as  good  as  they  send, 
to  talk  back  as  saucily  as  he  likes,  and  to  hoist  the  engineer 
by  his  own  petard.      Upon  his  examination  in  chief,  if  he 
has  a  partiality  for  the   side  w^hich  calls  him,  he  is  quiet 
enough ;  but  upon  cross-examination  his  peculiar  qualities 
are  fully  developed.       Having  very  little  respect  for   the 
court,  and  none  whatever  for  the  bar,  he  holds  his  temper 
under  very  slight  control,  and  soon  passes  from  sulky  im- 
pertinence into  downright  insolence  and  insult.     He  consid- 
ers it  a  great  feat  to  bully  a  lawyer,  and  nothing  restrains 
him  in  the  slightest  degree,  but  judicial  interposition  which  is 
often  tardy  and  only  partially  effective.      Under  these  cir- 
cumstances the  position  of  the  advocate  becomes  trying.    It 
is  absolutely  indispensable  for  him  to  control  his  own  tem- 
per, which  is  a  very  difficult  feat  for  the  young  and  excitable, 
and  to  make  the  most  of  the  brute  rage  of  the  witness,  ex- 
tracting from  him  such  admissions,  concessions,  or  contra- 
dictions, as  under  the  circumstances  may  be  possible.     By 
no  means  should  the  advocate  answer  in  kind  the  violent 
lanofuaofc    of    his    adrersarv-      He    should  confine    himself 
strictly  to  the  business  in  hand,  maintain  ihe  most  frigid 
deportment,  freeze  out  the  bully,  and  impress  him.  if  pos- 
sible with  the  idea  that  in  bearding  a  court  of  justice  he  is 
incurring  a  very  formidable  and  mysterious  danger.     Old 
stagers  manage  this  sort  of   thing  easily  enough  ;  but  the 
fledgelings  of  the  profession  are  often  flurried  by  the  violent 
demeanor   of  the  witness,  lose  their    self-possession,  and 
sometimes  let  valuable  points   escape  them.       This  sort  of 


THE  SWIFT  WITNESS. 


81 


witness  differs  from  the  flippant  witness  in  that  he  is  a  phys- 
ical force,  knifc-and-pistol  sort  of  man,  ready  for  a  fight, 
and  desirous  of  an  actual  personal  encounter  with  the  dis- 
ciple of  Themis  if  he  can  find  or  make  an  available  casus 
belli.  He  was  formerly  quite  common  in  his  appropriate 
habited,  but  is  becoming  rare.  Wherever  he  flourishes,  his 
existence  is  a  reproach  to  the  judicial  functionaries  whose 
laxity  of  discipline  renders  him  a  possibility. 

§  54.  The  Swijt  Witness. —T\\q  swift  witness  is  the 
partisan.  For  him  the  lawsuit  has  all  the  attractions  of  a 
horse-race  or  an  election,  and  his  devotion  to  the  plaintiff 
(or  defendant,  as  the  case  may  be)  surpasses  that  of  the 
ward  politician  for  the  candidate  of  his  and  the  people's 
choice.  His  devotion  may  be  created  by  actual  ])ersonal  or 
pecuniary  interest  in  the  result,  or  friendship  for  one  party,, 
or  hostility  to  tlic  other,  or  all  combined.  Being  an  ardent 
and  impulsive  person,  the  swift  witness  is  indiscreet ;  nobody 
can  moderate  his  zeal,  and  he  enters  the  witness-box,  as  a 
knight  prances  into  the  lists  to  do  battle  a  Voutrance  in  the 
cause  which  he  has  espoused.  The  swift  witness  rarely 
appears  in  an  uncompounded  condition,  for  man  seldom 
performs  any  but  the  simplest  actions  from  a  single  motive. 
Besides  the  great  characteristic  idea,  there  are  ancillary  im- 
pulses and  habits  which  impart  their  color  to  the  actions^ 
and  render  man  a  morally  variegated  and  composite  being. 
The  swift  witness  is  often  also  a  lying  witness,  or  a  positive 
witness,  most  generally  the  former ;  for  whenever  strong 
partiality  coincides  with  a  feeble  moral  sense,  the  tempta- 
tion to  actual  falsehood  is  likely  to  prove  too  strong  for  that 
sort  of  "  poor,  weak  human  nature."  An  amusing  in- 
stance of  this  combination  occurred  recently  in  Maine. 
There  was  a  suit  instituted  by  a  man  for  a  divorce,  and  a 
witness  who  had  testified  strongly  in  favor  of  the  husband 
was  turned  over  to  the  other  side  for  cross-examination. 
How  far  his  zeal  sei-ved  his  friend,  will  appear  by  the  fol- 
lowing colloquy :  'vviii         "''^    '' 

•'  You  pay  that  Mrs.  B.  had  a  vorv  retaliating  (lisf)osition?" 


S2  HINTS  ON  ADVOCACY. 

"Yes,  sir;  that  is  what  I  said." 

"•  Well,  how  did  she  retaliate?    Give  me  an  iusLance." 

'•  I  have  told  you  once;  she  was  alwaj's  retaliatin"." 

"Exactly;  but  we  want  a  particulai-  instance.     Xow  look;  did  you 
ever  see  Mr.  B.  kiss  liis  wife?  " 

''Yes,  sir." 

"And  what  did  she  do?  " 

"•  She  reUiUated  immcjUly .''' 

"  That  will  do;  you  may  stand  aside." 

§  55.  The  Female  Witness. — A  woman  on  the  witness 
stand  is  always,  in  insurance  language,  extra-hazardous. 
She  is  very  rarely  indifferent  to  the  result  of  the  trial, 
indeed,  is  usually  partisan  in  her  feelings,  and  often  a 
"  swift"  witness  of  the  most  pronounced  type  ;  lor  women, 
as  a  rule,  arc  not  gifted  with  judicial  minds,  and  lack  the 
gi-eat  juridical  instinct  of  impartiality.  If  she  favors  your 
side,  you  will  need  all  your  tact,  acumen  and  delicacy  of 
touch  to  restrain  her  impetuosity,  and  prevent  her  from 
seriously  damaging  your  case  by  her  manifest  bias.  If  she 
is  aiTMinst  you,  and  it  becomes  your  duty  to  cros.s-examine 
her,  you  labor  under  one  disadvantage.  She  is  protected 
by  her  sex  from  several  lines  of  tieatment  usually  consid- 
ei-ed  admissible  in  other  cases.  You  must  in  any  event,  and 
at  all  hazards,  scrupulously  preserve  the  suaviter  in  modo, 
and  treat  her  with  the  most  distinguished  consideration.  It 
will  7iot  do  for  you  to  lose  your  temper,  or  to  give  way  to 
sarcasm,  to  bandy  words,  or  otherwise  manifest  the  slightest 
failure  in  courtesy.  Such  a  course  would  assuredly  enlist 
against  you  the  chivalrous  feeling  of  the  jury,  and  possibly 
of  the  court  itself.  However  voluble  she  may  have  been 
on  her  examination  in  chief,  to  you  she  will  be  curt  and  la- 
conic, and  you  can  only  lead  up  carefully,  slowdy  and  insid- 
iously, per  ambages,  to  such  admissions  and  qualifications  of 
her  direct  testimony  as  may  favor  your  views,  and  espe- 
cially, with  great  care,  encourage  her  to  display,  as  con- 
spicuously as  possible,  her  prepossessions  in  favor  of  your 
adversary.  Unless  you  are  maladroit,  or  she  unusually 
suspicious,  you  will  succeed  ;  for  such  cases  are  often  ex- 
ceptions to  the  Scriptural  rule:   '*  Vainly  is  the  net  spread 


^THE  FEMALE  WITNESS.  83 

in  the-sight  of  any  bird."  If  by  this  strategy  you  can  se- 
cure some  modifications  of  her  testimony,  and  fully  demon- 
strate to  the  jury  from  the  lady's  own  lips  that  you  are  not 
in  her  "  good  books,"  you  should  be  content  and  draw  off 
your  forces.  A  partisan  female  witness  is  of  very  ques- 
tionable value  to  the  party  which  calls  her,  and  if  the  cross- 
examination  be  discreet  and  skilful,  will  count  a  point 
against  her  friends,  not  in  their  favor. 

But  there  are  other  women  unlike  this  woman  ;  for,  Mr. 
Weller's  opinion  to  the  contrary  notwithstanding,  all  women 
are  not  alike.  These  other  Avomen  are  timorous  souls,  who 
have  a  most  vivid  idea  of  the  pains  and  penalties,  temporal 
and  spiritual,  incident  to  the  crime  of  perjury,  and  a  fixed 
determination  not  to  incur  them.  They  are  so  upright  that 
they  lean  over.  Their  exceeding  caution  often  encumbers 
their  testimony  with  a  multitude  of  provisos,  saving  clauses, 
exceptions,  and  qualifications  ;  and  unless  by  the  address  of 
the  examining  counsel  some  stamina  of  fixed  fact  can  be 
inserted  into  the  limp  mass,  their  evidence,  which  might 
otherwise  have  been  valuable,  becomes  utterly  worthless. 
When  such  witnesses  fall  into  the  clutches  of  the  cross- 
examiner,  they  are  as  clay  in  the  hands  of  the  potter. 


84 


HINTS  ON  ADVOCACY. 


CHAPTER  V. —  1'iiE  Ke-Examination. 


SECTION. 

50.  Effects  of  Cross-ExaTiiination. 

57.  Do    not    Ke-Examine    unless 

Necessary. 

58.  Kules  for  Ile-Examiuinff. 


SECTION. 

59.  Evidence  as  to  Character — An 

Effective  Re-Exaini nation. 
GO.  Dangers  to  be  Avoided. 
Gl.  Addi.tioual  Suo-gestions. 


This  branch  of  advocacy  will  not  require  very  elaborate 
treatment.  Not  that  it  is  by  any  means  an  unimportant 
subject  or  a  small  matter  in  the  conduct  of  a  case  ;  on  the 
contrar}^  it  is  Avorthy  of  the  most  careful  study,  and  the 
following  hints  may  be  of  some  use,  while  they  show  the 
dangers  as  well  as  the  advantages  of  re-examination.  If  it 
were  not  necessary,  cross-examination  would  be  useless. 
To  restore  the  ravages  that  have  been  made  by  that  destruc- 
tive engine,  is  the  principal  duty  of  this  portion  of  the  ad- 
vocate's work. 

§  56.  Effects  of  Cross-Excnnination.  —  If  you  have 
watched  the  cross-examination  with  that  unceasing  vigilance 
which  you  ought  to  have  bestowed  upon  it,  you  will  have 
observed  and  noted  the  points  that  have  been  made  against 
you.  Some  of  your  evidence  has  disappeared  altogether; 
other  portions  have  received  such  a  shock  that  they  exist  in 
a  very  rickety  and  dilapidated  form  ;  some  other  parts  have 
received  a  coating  of  interpretation,  if  I  may  use  the  ex- 
pression, which  must  be  removed  ;  other  fragments  lie  here 
and  there  in  a  mass  of  confusion  from  which  they  must  be 
extricated  if  you  desire  to  re-establish  your  case.     A  hur- 


DO  NOT  RE-EXAMINE  UNLESS  NECESSARY.  85 

ricane  seems  to  have  swept  over  jour  homestead,  destroying 
some  of  your  less  substantial  outbuildings  and  threatening 
even  the  mansion-house  itself.  In  such  a  state  of  affairs 
as  this  you  will  find  niucli  to  do,  and  where  to  begin  is  the 
first  question.  At  the  ])eginning,  I  would  say,  as  nearly  as 
you  can.  Begin  to  repair  where  the  first  breach  was  made. 
The  witness  may  have  given  an  answer  he  did  not  intend, 
and  very  much  of  the  subsequent  mischief  ma}'  have  flowed 
from  that  unfortunate  mistake.  If,  therefore,  you  set  that 
right,  you  will  easily  pass  along  and  repair  the  damages 
whi(;h  have  resulted  from  it.  Strict  order  and  arrangement 
in  this  branch,  as  in  all  others,  should  be  observed  ;  every- 
thing done  by  design,  and  nothing  left  to  chance.  Proceed 
in  3'our  work  of  repair  as  the  destroyer  proceeded  in  his 
task  of  destruction.  Explanations  in  this  stage  of  the  case 
often  make  your  evidence  the  stronger  for  the  confusion  in 
which  it  has  been  temporarily  involved. 

§  57.  Do  not  Re-Examine  unless  Necessary . — But  unless 
re-examination  be  absolutely  necessary  it  should  never  be 
used.  It  is  not  every  trifle  that  should  induce  you  to  com- 
mence afresh  with  your  witness.  If  a  trivial  and  unimpor- 
tant point  has  been  made,  but  the  leading  facts  of  the  case 
are  left  undisturbed,  leave  the  matter  to  the  jury.  But  the 
point  may  be  small,  and  yet  not  unimportant.  Its  position 
may  give  it  effect.  By  not  re-examining  when  you  are  not 
obli;T:ed  to,  the  danger  of  cross-examining  vour  own  witness 
will  be  avoided.  You  are  not  required  to  explain  every- 
thing. It  sometimes  happens  that  a  witness,  from  natural 
suspicion  of  the  intention  of  the  cross-examining  counsel, 
will  not  answer  intelligibly,  will  hesitate  or  stumble.  It  is 
not,  however,  necessary  that  you  should  fly  to  pick  him  up 
before  he  is  down.  If  his  evidence  in  chief  has  been  fairl}'^ 
given,  the  jury  will  be  sure  to  make  allowance  for  sul)se- 
quent  manoeuvres  to  upset  him.  Whereas  if  you  rush  to 
the  rescue  unnecessarily,  and  endeavor  to  obtain  explana- 
tions not  vouchsafed  to  your  opponent,  the  witness  will 
think  vou  are  anxious  for  his  answers,  and  recovering:  from 


86  HINTS  ON  ADVOCACY'. 

his  ncrvousnoss,  will  fill  up  the  gaps  jour  opponent  has  left. 
In  other  words,  you  will  complete  his  cross-examination, 
with  this  additional  advantage  to  him,  that  the  evidence  will 
look  like  evidence  in  chief,  and  not  like  that  extracted  by  a 
hostile  examiner. 

If  an  answer  be  elicited  in  cross-examination  which  is 
favoral)le  to  your  case,  it  is  highly  important  that  yoji 
should  not  a[)pear  to  be  so  fascinated  with  it  as  to  re- 
examine upon  that.  Something  else  may  be  admissible  in 
consequence,  and  this  opportunity  should  be  watched  for 
and  seized.  If  you  re-examine  upon  the  very  fact  ob- 
tained for  you,  this  result  may  follow,  that  your  opponent, 
who  discreetly  enough  declined  to  pursue  the  subject  fur- 
ther, may  have  the  satisfaction  of  hearing  you  get  an  ex- 
planation which  may  neutralize  the  effect  of  his  mistake. 
^^ Leave  well  aloiie."  An  answer  favorable  to  you,  elicited 
in  cross-examination,  is  not  a  subject  to  re-examine  upon 
of  itself,  but  to  be  made  the  most  of  in  your  reply. 

§  58.  Bides  for  Re-examination. — As  you  watch  carefully 
the  cross-examination  of  your  witness,  you  will  probably  be 
made  aware  for  the  first  time  of  many  weak  points  in  your 
case.  If  there  should  be  one  which  you  have  flattered  your- 
self has  been  passed  cleverly  by  in  your  examination  in 
chief,  you  may  certainly  anticipate  a  well-directed  blow  in 
that  quarter,  at  all  events.'  You  must  watch,  therefore, 
like  a  second  in  a  pugilistic  encounter ;  for  when  it  comes, 
your  witness  will  in  all  probability  require  picking  up. 
How  to  do  it  is  more  than  I  can  tell,  as  I  am  not  holding 
your  brief,  and  know  nothing  of  the  facts.  It  is  in  the 
remedying  of  such  a  misadventure  that  the  art  of  re-exara- 
ination  consists  ;  and  it  is  only  by  an  intimate  knowledge  of 
your  facts  and  their  relative  Searmr/.s  that  you  will  be  en- 
abled to  set  your  witness  up  when  his  evidence  has  beeii 
thus  battered. 

Sometimes  a  cross-examination  has  been  so  effective  that 
the  evidence  of  a  particular  witness  has  been  hopelessly  de- 
molished.    An  experienced  advocate,  under  such  circum- 


RULES  FOR  RE-EXAMINATION.  87 

stances,  will  resign  him  to  his  futc.  If  he  have  other  wit- 
nesses upon  whom  he  can  rely,  his  task  will  l)e  with  them; 
if  not,  the  case  must  fall  with  the  witness. 

Next  to  carefully  watching  for  any  i)oints  that  may  be 
made  against  you,  a  no  less  important  duty  will  be  to  see 
how  you  may  turn  any  answer  to  your  advantage.  Your  ad- 
versary may  not  be  a  very  skilful  or  experienced  advocate ; 
he  may  be  an  indilTiTcnt  cross-examiner;  in  which  event 
you  may  safely  trust  him  to  play  into  your  hands.  He  will 
get  portions  of  conversations  which  will  make  the  remainder 
admissible  ;  perhaps  put  in  documents  which  will  give  you 
the  same  advantage,  besides  affording  you  the  right  of 
reply ;  and  if  you  have  been  considerate,  you  will  have  left 
him  to  follow  up  a  question  or  two  put  for  the  express  pur- 
pose. This  does  not  imply  that  you  wmII  have  left  anything 
out  in  3^our  examination  in  chief  which  it  was  material  to 
prove ;  that  would  be  the  height  of  folly.  You  must 
always  assume  that  your  opponent  will  not  prove  your  case 
for  you.  I  speak  only  of  matters  Avhich  you  yourself  can 
not  get  in,  and  which  may,  nevertheless,  have  an  important 
bearing  upon  your  case. 

You  must  watch,  also,  to  see  whether  any  attack  be  made 
upon  your  witness  in  cross-examination.  If  his  credil)ilitj 
be  assailed,  you  must  be  prepared  to  re-establish  it,  if  neces- 
sary ;  for  that  is  the  foundation  upon  which  his  evidence  rests  ; 
and  you  must  do  it  by  questions  that  will  elicit  explanations 
of  circumstances  left  doubtful,  by  removing  the  grounds  of 
suspicion,  and  giving  the  real  character  to  a  transaction  ca- 
pable of  two  constructions.  When  this  is  i)roperly  done, 
nothing  is  more  effective  with  a  jury  ;  they  will  feel  as 
though  they  had  been  relieved  of  a  burden.  They  will  be 
pleased  to  find  suspicion  removed  from  :i  person  whom  they 
desire  to  believe  ;  and  not  onh^  this,  the  impression  of  hav- 
ing l)ecn  imposed  upon  will  also  l)e  removed,  and  their 
minds,  temporarily  disturbed,  will  settle  down,  as  it  were, 
into  a  state  of  tranquillity  and  satisfaction. 


88  HINTS  ON  ADVOCACY. 

§  59.  Evidence  as  to  Character — An  Effective  Re-Exam- 
ination.— Cross-examination  as  to  character  is  at  most  times 
an  uncertain  performance.  You  never  can  be  sure  as  to  the 
view  the  jury  will  take.  It  is  the  part  of  an  advocate's  duty 
which  they  least  like.  A  personal  suspicion  arises  that 
their  own  characters  would  not  l)e  secure  from  attack,  if 
once  they  were  comi)elled  to  enter  the  witness-box.  Every 
delinquency  might  be  hiid  bare,  and  his  most  tender  feelings 
outraged  by  an  unscrupuh)us  and  unfeeling  advocate.  All 
this  might  be  quite  unfounded  as  a  suspicion,  but  that  mat- 
ters little  if  the  suspicion  exists.  I  need  not  say  it  is  your 
bounden  duty  to  protect  your  witness  to  the  utmost  of  your 
power.  Sometimes  you  may  do  it  by  way  of  objection,  but 
if  not,  you  must  exercise  your  best  skill  to  effect  your  pur- 
pose by  re-examination. 

I  will  give  one  instance  where  character  was  once  in  my 
hearing  cruelly  assailed  in  cross-examination  by  an  inexpe- 
rienced advocate,  and  upon  whom  it  recoiled  with  crushing 
severity.  He  asked  a  witness  if  he  had  not  been  convicted 
of  felony.  In  vain  the  unfortunate  victim  in  the  box  pro- 
tested that  it  had  nothing  to  do  with  the  case.  "  Have  you 
not  .been  convicted  of  felony?"  persisted  the  counsel. 
"Must  I  answer,  my  lord?"  "I  am  afraid  you  must," 
answered  his  lordship.  "  There  is  no  help.  It  will  be  bet- 
ter to  answer  it,  as  your  refusal  in  any  event  would  be  as 
bad  as  the  answer."  "  I  have,"  murmured  the  witness, 
under  a  sense  of  shame  and  confusion  I  never  saw  more 
painfully  manifest.  The  triumphant  junior  sat  down.  Not 
long,  however,  was  his  satisfaction.  In  re-examination  the 
■witness  was  asked  :  "  When  was  it?  "  A.  "  Twenty-nine 
years  agoV  The  Judge  :  "  You  were  only  a  boy?"  Wit- 
ness :  "Yes,  my  lord."  It  need  scarcely  be  added  that  a 
just  and  manly  indignation  burst  from  all  parts  of  the 
court,  and  the  comments  of  the  learned  judge  were  anything 
but  complimentary  to  the  injudicious  advocate. 

§  60.   Dangers  to  he  Avoided. — Sometimes  a  question  will 
he  put  in  cross-examination  which  produces  ari  answer  not 


DANGERS  TO  BE  AVOIDED.  89 

unfavorable  to  either  side,  b  U  which  it  may  not  be  eonsidered 
safe  to  follow  up  by  another.  You  will  have  to  consider 
whether  it  will  be  safe  on  your  part  to  take  it  up  where  your 
opponent  has  left  it,  and  you  will  best  consider  this  by 
weighing  the  whole  of  the  facts  of  your  case  and  the  effect 
of  the  answer  whatever  it  might  be  ;  or  you  might  put  a 
question  or  two  by  way  of  test,  and  then  abandon  it  or  not, 
as  the  answers  warranted. 

Again,  your  opponent  may  have  put  a  question  wdiich  has 
*'  let  in  "  something  for  you  in  re-examination  ;  or,  on  the 
other  hand,  he  may  have  put  one  which  tempts  you  to  follow 
it  up,  and  by  that  means  may  have  let  you  in.  The  utmost 
caution,  therefore,  is  necessary  in  pursuing  anything  that  has 
been  started  for  you  by  your  adversary.  He  is  by  no  means 
a  safe  guide  to  follow,  and  the  less  you  keep  company  with 
him,  the  better. 

It  might  be  observed  here  that  one  should  not  be  too 
ready  to  object  to  questions  put  by  way  of  cross-examina- 
tion. Sometimes  they  are  asked  for  the  very  j^urpose  of 
inducijig  you  to  object,  and  when  this  is  the  case,  and  you 
fall  into  the  snare,  it  is  ol)vious  that  an  unfavorable  effect 
will  be  produced  by  you  on  the  jury.  They  imagine  at  once 
that  there  must  be  something  in  the  background  which  you 
are  endcavorins:  to  conceal.  You  lose  their  confidence,  and 
in  all  probability  rouse  within  them  a  feeling  that  they  are 
being  imposed  ui)ou  and  deceived. 

When  questions  have  been  asked  as  to  character  and  have 
failed,  it  is  far  better  to  deal  with  the  matter  in  your  address 
to  the  jury,  than  to  put  the  stereotyped  question  in  re-exam- 
ination :  "  Is  there  any  pretense  for  suggesting?"  etc.  The 
first  denial  answers  all  purposes  for  the  time  being,  and  the 
mere  repetition  of  it  adds  no  weight ;  besides,  the  natural 
indignation  arising  from  the  circumstance  will  be  all  the 
better  for  not  being  exi)loded  too  soon.  A  quiet  and  indig- 
nant protest  to  the  jury  will  be  all  that  is  necessary. 
Above  all  things,  it  should  be  remembered,  that  re-examin- 
ation does  not  consist  in  repeating  the  evidence  in  chief,  or 


do  HINTS  ON  ADVOCACY. 

in  explaining  answers  that  are,  in  your  favor .  If  your  case 
be  II  good  one,  and  your  witnesses  honest,  very  little  will  be 
left  to  do  at  this  stage  of  the  proceedings.  If  it  i)e  a  bad 
case,  and  your  witnesses  the  reverse  of  truthful,  all  the  re- 
examination in  the  world  will  not  set  them  up  as  they  were 
before.  It  is  of  immense  importance,  and  indeed  necessary 
for  the  purpose  of  explaining  something  which  has  been  left 
obscure,  or  removing  an  erroneous  impression,  or  supple- 
menting some  matter  which,  taken  by  itself,  looks  to  your 
disadvantage  ;  for  most  other  purposes  it  would  be  worse 
than  a  waste  of  time,  since  it  would  unquestionably  injure 
your  cause. 

§  61.  Additional  Suggestions.  —  Re-examination  arises 
from  a  right  to  explain.  It  is  often  so  advantageous  that  a 
case  may  be  won  by  its  judicious  exercise,  while  it  is  usually 
so  innocent  of  evil  that  it  would  require  the  utmost  ingenu- 
ity of  the  most  experienced  counsel  to  make  it  the  me.ms  of 
losing  one.  You  must  have  a  thorough  knowledge  of  your 
facts,  and  have  watched  ever}'-  question  of  the  cross-examin- 
ation with  the  utmost  vigilance,  to  take  the  full  benefit  of  your 
right,  and  to  make  your  case  stand  out  in  the  bolder  relief 
which  the  cross-examination  will  afford  to  it.  But  nothing 
is  more  tedious,  or  more  irritating  to  judge  or  jury,  than  to 
see  an  advocate  floundering  in  re-examination  among  facts 
which  he  only  displaces  and  confuses,  thinking  he  must 
needs  ask  something  because  there  has  been  a  long,  and  it 
may  be,  severe  cross-examination.  First  ascertain  what 
fact  has  been  displaced  or  obscured,  and  ivhat  neiv  matter 
introduced,  and  then  you  will  know  what  requires  to  be  re- 
arranged and  what  to  be  explained,  before  you  rise  to  put  a 
single  question. 

In  re-examination,  as  in  cross-examination,  after  learning 
thoroughly  how  to  do  it,  the  next  branch  of  learning  to 
which  the  student  had  best  direct  his  assiduous  attention 
is  — How  not  to  do  it  I 


THE  REPLY. 


91 


CHAPTKR  VJ.— TiiK  Ukj-ly. 


SECTION. 

62.  Endeavor  to  Secure  the  Judge. 

63.  Advocacy  is  Speaking. 

64.  Do  not  Flatter  the  Juiy. 

65.  Nor  Attaclv  your  Opponent. 
60.  Nor  Notice  liis  Attacks. 

67.  Order  and  An-anc:enient. 

68.  Avoid  Minute  Criticism. 

69.  Effect  of  Testimony. 

70.  Probabilities  and  Possibilities. 

71.  Presenting    your  own    Testi- 

mony. 


SECTION. 

72.  Avoid  Common-Place  Sayings 

73.  Illustration,  wlicn  Proper. 

74.  Avoid  Emotion. 

75.  Do  not  Introduce  Prejudice. 

76.  The  Elements  of  a  good  Keply. 

77.  Do  not  Exaggerate. 
7S.  The  Peroration. 

79.  Lord  Brougham  on  the  Duty 

of  an  Advocate. 

80.  Criticism  on  his  Words. 


The  reply'is  alwayss  of  great  importance,  and  a  struggle 
is  frequently  made  for  the  "  last  word."  Many  persons 
affect  to  disbelieve  in  it,  but  certainly  not  those,  who  are 
able  by  their  eloquence  to  avail  themselves  fully  of  its 
advantages.  Even  evidence  itself  is  sometimes  sacrificed 
for  the  sake  of  the  reply,  although  I  am  not  sure  that  if  the 
evidence  be  of  the  smallest  value,  this  is  a  course  which 
ought  to  be  pursued.  However  powerful  arguments  may 
be,  facts  are  more  powerful  still.  Nevertheless,  it  is  fre- 
quently a  question,  whether  the  advocate  will  reply  on  his 
address  for  the  verdict,  or  call  witnesses  and  give  the  reply 
to  his  opponent.  Under  any  circumstances,  however  —  ex- 
cept in  a  case  where  one  advocate  is  powerful  and  the  other 
weak  of  speech  —  the  reply  is  a  valuable  privilege.     Some 


92  HINTS  ON  ADVOCACY. 

speeches  doubtless  are  worse  than  none  at  all,  and  may  even 
assist  the  other  side  bv  means  of  contrast. 

§  02.  Endeavor  to  Secure  the  Judge. — No  one  will  doubt, 
I  presume,  that  the  first  thing  to  do  is  to  secure  the  atten- 
tion of  the  jury.  The  next,  that  of  the  judge.  Although 
I  call  this  second,  it  is  very  often  of  the  first  importance,  as 
frequently,  when  you  have  not  the  jury  with  you,  you  may 
win  by  having  the  judge.  lie  is  always  a  powerful  advo- 
cate to  follow  on  your  side  ;  therefore  gain  his  attcMtion  if 
you  can.  I  heard  not  long  ago  a  defeated  advocate  say  to 
his  successful  opponent:  '•  The  judge  got  you  the  verdict." 
"  Yes,"  replied  the  latter,  "  but  1  got  the  judge."  If  he 
takes  your  view  of  law  and  facts,  the  verdict  follows  either 
there  or  elsewhere.  He  will,  however,  take  at  times  a  some- 
what different  view  from  yours,  lioth  of  the  facts  and  the 
law  ;  and  then,  in  spite  of  opposition,  you  must  endeavor  to 
win  your  waj  to  the  jury.  This  is  the  object  of  the  reply 
as  of  the  other  processes  of  the  case.  And  how  to  acconi- 
})lish  it  is  a  question,  on  the  consideration  of  which  too 
much  time  and  study  cannot  well  be  bestowed. 

§  63.  Advocacy  is  Speaking. — The  hints  here  given  — 
based  upon  observation  and  experience  —  may  be  useful, 
although  no  number  of  "hints"  of  themselves  will  ever 
mnke  an  advocate.  The  art  of  speaking,  logical  reasoning 
and  rhetoric,  are  all  involved  in  this  branch  of  an  advocate's 
dutv.  It  must,  however,  be  assumed  that  the  reader  has 
made  these  the  subject  of  considerable  study.  If  he  have 
not,  he  had  better  turn  his  attention  to  them  without  delay 
and  with  the  most  assiduous  care.  The  art  of  speaking,  I 
am  quite  sure,  is  bv'-  no  means  cultivated  as  it  should  be,  and 
a  ridiculous  fashion  has  sprung  up  of  late  years  of  under- 
valuing it  as  a  means  of  advocacy.  The  fact,  however, 
remains,  that  the  best  speaker  is  still  the  most  successful 
advocate  as  a  rule  ;  and  if  a  man  is  to  make  anything  either 
of  himself  or  his  case  l)y  addressing  a  jury,  the  more  per- 
fectly he  can  speak,  the  better  it  will  be  for  both.  No  pains 
or  labor  should  be  spared  upon  this  branch  of  an  advocate's 


DO  NOT  FLATTER  THE  JURY.  93 

duty.  To  .speak  well  is  to  succeed,  and  the  l)etter  you  can 
speak,  the  fewer  coinpetitor.s  you  will  lind  in  the  field 
against  you. 

§  (J4.  Uo  not  Flatter  the  Jury.  — In  conciliating  a  jury 
so  as  to  put  them  on  good  terms  with  you  and  secure  their 
attention,  you  should  be  careful,  as  I  have  before  observed, 
not  to  adopt  a  practice  too  common  with  young  advocates, 
namely,  that  of  flattering  them.  You  must  not  forget  that 
their  nafure  is  by  no  means  changed  because  thoy  are  in  the 
jury-box.  '■'■Sti-oldng  "  a  jury  is  not  a  dignified  proceed- 
ing ;  talking  about  their  intelligence,  as  though  it  were 
necessary  to  remind  them  that  they  are  not  altogether 
fools,  is  the  worst  means  to  make  them  believe  in  your  in- 
telligence or  knowledge  of  mankind. 

Again,  obtruding  ujoon  1  hem  the  information  that  they 
are  sensible  men,  will  not  i:ii[)rove  their  o[)inion  of  you  or 
interest  them  in  any  way.  What  you  have  to  do  is  not  to 
convince  them  that  they  are  sensible,  l)ut  —  that  you  are! 
Nor  is  it  necessary  to  remind  them  that  you  are  "  quite  cer- 
tain that  they  will  take  an  honest  and  impartial  view  of  the 
facts:"  this  is  not  replying,  nor  is  it  rhetoric;  it  is  the 
flimsiest  of  cl:iptra[).  Hackneyed  expressions  are  always 
ineffective,  st;ile  and  irritating;  they  show  a  povertv  of 
idea  as  well  as  language,  and  exhibit  the  weakest  style  of 
advocacy.  There  is  no  necessity  to  argue  with  the  jury 
upon  their  honesty,  as  though  there  were  some  doubt  about 
it ;  or  their  impartiality,  as  if  you  had  a  suspicion  that  they 
were  being  influenced  by  a  strong  interest  on  the  other  side. 
You  must  not  let  the  jury  imagine  that  you  are  attempting 
to  humlmg  them.  Any  observations  will  be  simply  foolish, 
that  have  for  their  object  the  inducing  the  ju:y  to  believe  in 
themselves  ;  a  far  better  attem[)t  will  be  to  make  them  be- 
lieve in  you!  '♦  If,"  says  AVhatcIy,  "  the  pleader  can  in- 
duce a  jury  to  believe  n(  t  only  in  his  own  general  integrity 
of  character,  but  also  in  his  sincere  conviction  of  the  justice 
of  his  client's  cause,  this  will  give  great  additional  weight 
to  his  i)leading,  since  he  will  thus  be  regarded  as  a  sort  of 


-94  HINTS  ON  ADVOCACY. 

witness  in  the  cause.  And  this  accordingly  is  aimed  at,  and 
often  with  success,  by  practiced  advocates.  They  employ 
tlie  language  and  assume  tiie  manner  of  full  belief  and 
strong  feeling." 

§  H5.  ]Vo7'  Attack  your  Opponent. — Another  bad  way  of 
beginning  a  reply  is  to  attack  your  opponent  or  his  asso- 
ciates, or  the  client.  The  jury  care  for  none  of  them.  You 
have  to  demolish  the  case  of  your  oi)ponent,  not  Jiini.  Be- 
•sidcs  abuse  is  neither  argument  nor  advocacy  ;  and  any  per- 
sonal attack  is  mere  abuse,  except  when  it  is  used  to  de- 
nounce a  witness  whose  evidence  requires  to  be  so  dealt 
with.  Junius  says  in  one  of  his  letters:  "The  choice  at 
least  announced  to  us  a  man  of  superior  capacity  and  knowl- 
edge. Whether  he  be  so  or  not,  let  his  dispatches,  as  far  as 
they  have  appeared  —  let  his  measures,  as  far  as  they  have 
operated — determine  for  him.  In  the  former  Ave  have  seen 
strong  assertions  without  proof,  declamation  without  argu- 
ment, and  violent  censures  without  dignity  or  moderjttion, 
but  neither  correctness  in  the  composition  nor  judgment  in 
the  design." 

§  GG.  JSfor  ISfotice  Ids  Attacks. —  Nor  will  it  assist  your 
case  to  answer  any  attacks  which  your  opponent  may  fool- 
ishly have  made  upon  you.  Avoid  being  drawn  from  legit- 
imate argument  into  a  personal  encounter.  The  dispute  is 
not  yours,  but  your  client's,  and  it  is  extremely  selfish  to 
indulge  in  a  personal  conflict  at  his  expense.  If  anything 
has  been  said  which  required  an  answer  from  you,  the  time 
for  giving  it  was  at  the  moment  of  its  utterance.  When  you 
reply,  it  is  not  your  case,  but  that  of  your  client  that  de- 
mands the  undivided  attention  of  the  jury. 

Securing  this  attention  is  as  much  due  to  the  manner  in 
which  you  address  your  hearers  as  the  substance  of  what 
>y  )u  sav.  The  most  thorough  earnestness  is  the  all-impor- 
tant quality  either  to  [)ossess  or  to  assume.  A  quiet  collo- 
quial sentence  or  two,  with  not  too  much  of  solemnity, 
uttered  as  if  you  had  the  fullest  confidence  in  them  without 
telling  them  so,  and  as  if  you  also   had  the  fullest  confi- 


Oi:i)p:ii  AND  AKllANGEMENT.  95 

^  deuce  in  yourself,  without  asserting  it,  will  be  pretty  sure 
to  establish  a  good  understanding  between  you  and  the  jury 
at  the  comtncncenient.  If  you  can  not  succeed  in  this,  your 
address  will  have  little  effect,  however  powerful  ;  whereas, 
if  you  do  succeed,  every  argument  will  have  weight  in  pro- 
portion to  its  relevancy  to  the  issue. 

§  67.  Order  and  Arrangement. — The  next  thing  to  be 
attended  to  now,  although  it  Avas  the  first  thing  to  prepare 
before  you  rose,  is  the  order  and  arrangement  of  your 
speech.  No  address  can  be  good  without  this,  and  it  can 
not  be  altogether  bad  with  it.  The  minds  of  your  hearers 
will  more  easily  follow  and  appreciate  when  you  take  them 
along  the  order  of  circumstances  as  they  occurred,  or,  as  I 
would  say,  the  main  road,  than  if  you  led  them  a  steeple- 
chase across  the  country.  You  should  so  arrange  the  ar- 
guments that  they  can  see  what  is  to  follow  as  you  advance 
along  the  line  of  facts,  and  it  Avill  appear  as  if  it  must  be 
correct,  because  the  one  fact  follows  so  naturally  upon  an- 
other. The  mind  better  understands  a  map  of  a  country 
where  the  counties  are  plainly  marked,  than  where  the  boun- 
daries are  undefined.  The  whole  case  is  spread  out  before 
the  jury  like  a  map,  and  the  better  its  divisions  are  traced 
the  more  fully  will  their  relative  bearings  be  understood. 
This  will  be  the  result  of  a  due  order  and  arrangement  of 
your  speech.  Your  opponent  has  made  his  comments  upon 
the  case  ;  has  put  prominently  forward  his  own  facts,  and 
placed  yours  as  far  as  possible  in  the  shade  ;  has  damaged 
some,  and  demolished  others.  You  must  now  not  only  per- 
form a  like  process  with  regard  to  his,  but  must  throw  light 
into  the  dark  places,  and  draw  out  your  own  facts  from 
their  temporary  obscurity. 

Observation  has  taught  me  that  the  best  advocates  (Avho 
invariably  proceed  by  system),  as  a  general  rule,  adopt  the 
course  of  grappling  with  their  opponent's  case  first.  It  is 
fresh  in  the  minds  of  the  jury,  and  the  best  time  to  deal 
with  it  is  before  it  has  been  long  enough  there  to  make  a 
deep   impression.      If  you  return  to  it  after  dealing  with 


96  HINTS  OX  ADVOCACY. 

your  own  case,  you  attack  it  instead  of  removing  it,  and 
may  leave  it  still  the  last  and  deepest  impression. 

§  68.  Avoid  Minute  Ciiticism. — In  doing  this,  care  must 
be  taken  to  avoid  dwelling  on  minor  discrepancies  in  your 
opponent's  evidence,  or  upon  the  trivialities  of  the  case. 
Minute  criticisms  impair  the  force  of  your  address  like 
grains  of  dust  in  the  wheels  of  machinery.  They  produce 
friction,  and  retard  instead  of  advancing  your  cause.  The 
jury  are  apt  to  think  you  have  nothing  better  to  urge,  and 
.  when  you  come  to  greater  matters  will  be  jaded  and 
wearied,  and  a  good  deal  of  the  effect  of  your  speech  will 
be  lost.  You  can  not  assign  any  position  in  which  trivial 
criticism  should  be  placed,  and  the  probability  is,  therefore, 
that  it  will  be  out  of  place  anywhere.  If  you  attempt  it 
before  coming  to  your  main  argument  the  jury  will  be 
wearied,  and  if  after,  your  arguments  will  lose  some  of  their 
force.  Besides  this,  you  endow  trifles  wnth  a  fictitious  im- 
portance. You  place  them  before  the  jury  and  magnify 
them  as  though  you  brought  them  under  a  lens.  Whately 
says:  "Too  earnest  and  elaborate  a  refutation  of  argu- 
ments which  are  really  insignificant,  or  which  their  opponent 
wishes  to  represent  as  such,  Avill  frequently  have  the  effect 
of  giving  them  importance.  Whatever  is  slightly  noticed 
and  afterwards  passed  by  with  contempt,  many  readers  and 
hearers  will  veiy  often  conclude  (sometimes  for  no  better 
reason)  to  be  really  contemptible.  But  if  they  are  assured 
of  this  again  and  again  with  great  earnestness,  they  often 
besin  to  doubt  it." 

§  (59.  Effect  of  Testimony. — It  should  also  be  borne  in 
mind  in  rei)lving,  that  what  you  have  really  to  deal  with  is  7iot 
the  testimony  of  the  witnesses,  but  the  effect  of  it,  or  the 
real  evidence  to  which  it  is  reduced  by  the  process  of  exam- 
ination. As  an  illustration  of  this  distinction,  I  may  men- 
tion a  case  tried  some  time  since  by  Mr.  Justice  (now  Lord 
Justice)  Brett.  The  action  was  brought  by  the  owner  of  a 
valuable  horse,  against  a  farrier,  for  negligence,  by  im- 
properly shoeing ;    in  consequence  whereof   the  horse  fell 


EFFECT  OF  TESTIMONY.  97 

lame  and  had  to  be  killed.  The  plaintiff  endeavored  to 
prove  that  the  hind  shoes  of  horses  were,  to  use  a  familiar 
expression,  "rights  and  lefts."  The  defcmdant  swore  that 
this  was  a  totally  erroneous  supposition.  His  witnesses 
testified  to  the  same  effect.  Perjury  was  not  attributed  to 
any  of  them.  They  seemed  to  believe  their  own  testimony, 
and  the  plaintiff  was  not  prepared  with  evidence  to  the  con- 
trary, as  the  point  arose  during  the  trial  from  an  examina- 
tion of  the  shoe  by  the  counsel,  who  placed  it  in  the  hands 
of  the  defendant,  and  asked  whether  it  was  not  made  for 
the  near  foot.  The  witness  said  it  would  do  for  either  the 
near  or  off  foot.  He  was  then  pressed  as  to  whether  he 
Avould  put  it  on  either  the  one  or  the  other,  as  it  might 
chance.  He  answered  "  yes."  The  nails  were  now  placed 
through  the  holes,  which,  being  properly  beveled,  gave  to 
their  points  on  the  one  limb  of  the  shoe  an  outward  direc- 
tion, and  on  the  other  side  a  different  inclination.  The  de- 
fendant was  asked,  whether  looking  at  that  fact,  he  was 
prepared  to  say  the  shoe  w^as  not  made  for  the  near  foot. 
He  said  it  was  not.  He  was  then  asked  how  it  was  that  the 
nails  in  the  two  sides  pointed  at  different  angles  ?  Answer  : 
*'  It  was  the  fashion."  The  Judge  :  "  The  fashion  with  all 
farriers?"  Answer:  "Yes."  In  summing  up,  the  learned 
judge  (taking  the  testimony  of  the  witnesses,  and  judging 
it,  not  by  its  truth  but  from  its  effect),  said :  "If  you  find 
a  general  mode  of  doing  a  particular  thing,  you  may  de- 
pend upon  it,  there  is  some  good  reason  for  so  doing  it, 
especially  where  it  obtains  universally  in  some  mechanical 
business.  If  all  farriers  make  horse-shoes  with  beveled 
holes  slanting  in  one  direction  on  one  side,  and  in  another 
direction  on  the  other,  you  may  be  sure  that  is  not  done  from 
mere  caprice.  What  is  the  effect  of  the  testimony?  It  is 
to  show  that  if  the  shoe  on  which  the  nails  slant  in  a  par- 
ticular direction  be  placed  on  the  off-foot,  they  will  come 
out  through  the  hoof  and  enable  the  farrier  to  clench  them  ; 
but  if  the  shoe  be  fixed  on  to  the  near  foot,  they  will  have  a 
tendency  to  penetrate  the  frog  of  the  foot,  and  so  cause 

(7: 


98  HINTS  ON  ADVOCACY. 

pain  and  lameness  to  the  animal.  The  question  is,  was  that 
the  case  here  ?  Wtp  a  shoe,  intended  for  the  off-foot,  fastened 
to  the  near  one?"  The  jury  came  to  the  conclusion  that 
that  had  been  the  case  from  the  effect  of  the  evidence  ;  the 
testimony,  uncontradicted,  being  directly  to  the  contrary. 

If  you  can  deal  with  the  effect  of  the  evidence  instead  of 
with  the  truthfulness  of  a  witness,  I  need  hardly  say  it  will 
be  so  much  the  better  for  your  case  ;  so,  if  instead  of  at- 
tacking the  credibility  of  a  witness,  you  dispute  his  accu- 
racy, his  memory  or  judgment.  "Men  are  apt,"  says 
Whately,  "to  judge  amiss  of  situations,  persons  and  cir- 
cumstances, concerning  which  they  have  no  exact  knowledge, 
by  applying  to  these  the  measure  of  their  own  feelings  and 
experience,  the  result  of  which  is  that  a  correct  account  of 
these  will  often  appear  to  them  unnatural,  and  an  erroneous 
one  natural."  Juries  never  like  to  believe  that  a  witness 
has  committed  perjury,  especially  if  he  have  no  interest  in 
the  case.  Nor  does  it  please  them  to  hear  character  as- 
sailed. If  you  fall  foul  of  the  jury  in  these  respects,  you 
may  as  well  sit  down  for  all  the  good  you  can  do  your 
client. 

The  effect  of  the  testimony,  then,  is  what  you  have  to  deal 
with  in  reply.  But  if  it  becomes  necessary,  as  it  sometimes 
must,  to  ask  the  jury  to  disbelieve  a  witness,  and  you  can 
put  it  on  no  easier  ground  than  that  he  is  untruthful,  you 
should  avoid  doing  it  by  denunciation  ;  that  is  only  to  be 
used  in  extreme  cases,  where  virtuous  indignation  will  do 
some  mischief  to  the  inner  man  if  pent-up  longer  ;  but  you 
will  find  "  half  steam  up,"  as  a  friend  of  mine  calls  it,  will 
carry  you  along  quite  fast  enough  in  any  event.  Your  just 
indignation  should  only  be  sufficiently  let  off,  that  it  may 
communicate  itself  to  the  pent-up  indignation  of  the  jury, 
and  let  that  off  with  it  in  the  shape  of  a  verdict.  The  best 
way  of  asking  a  jury  to  disbelieve  an  opponent's  witness  is 
to  call  attention  to  the  evidence  of  one  or  two  of  your  own. 
Some  matters  will  depend  partly  upon  the  facts  and  partly 
upon   the  witness's   judgment   or   understanding  of  those 


EFFECT  OF  TESTIMONY.  99 

facts  to  which  he  speaks  ;  his  view  may  be  entirely  wrong, 
and  his  conclusion,  which  he  puts  forward  as  a  fact,  wrong 
also.  I  again  have  recourse  to  Whately,  who  confirms  me 
upon  this  point.  "  If,"  he  says,  "  a  person  states  he  saw 
in  the  East  Indies  a  number  of  persons  who  had  been 
sleeping  ex[)osed  to  the  moon's  rays,  aillicted  with  certain 
symtpoms,  and  that  after  taking  a  certain  medicine  they  re- 
covered, he  is  bearing  testimony  as  to  simple  matters  of 
fact ;  but  if  he  declares  that  the  patients  were  so  affected  in 
consequence  of  the  moon's  rays  —  that  such  is  the  general 
effect  of  them  in  that  climate,  his  testimony,  however 
worthy  of  credit,  is  borne  to  a  different  kind  of  conclusion,, 
namel}^  not  an  individual  but  a  general  conclusion,  and  one 
which  will  rest  not  solely  on  the  veracity,  but  also  on  the 
judgment  of  the  witness."  "Even  in  the  other  case, 
however,  when  the  question  relates  to  what  is  strictly 
a  matter  of  fact,  the  intellectual  character  of  the  witness 
is  not  to  be  wholly  left  out  of  the  account.  A  man  may 
be  strongly  influenced  by  prejudice  —  to  which  the  weakest 
men  are  ever  the  most  liable  —  may  even  fancy  he  sees 
what  he  does  not." 

Intellectual  character  and  capacity  ought  always  to  be 
taken  into  account,  whenever  the  question  involves  intelli- 
gence above  the  commonest  understanding.  Positiveness 
generally  increases  in  proportion  to  the  ignorance  of  the 
witness.  An  ignorant  person  might  swear  the  sun  goes 
around  the  earth,  merely  because  it  seems  to.  That,  no 
doubt,  is  an  extreme  mode  of  putting  it ;  but  very  common 
instances  of  persons  swearing  to  what  seems  to  be,  and  mis- 
taking it  for  what  is,  might  be  given,  if  they  did  not  readily 
suggest  themselves  to  the  mind  of  the  reader. 

'•Xe  vrai  n'est  pas  touj ours  Je  vraisemblable,^^  is  an  adage 
worth  remembering  in  reply.  It  is  worth  conveying  to  the 
minds  of  the  jury,  for  they  are  very  apt  to  judge  by  appear- 
ances themselves,  and  they  are  never  better  pleased  than 
when  enjoying  the  surprise  of  having  been  deceived  by 
some  appearance.     They  experience  the  sensation  of  having 


100  HINTS  ON  ADVOCACY. 

been  told  the  answer  to  a  riddle  which  they  were  unable  to 
guess.  If  you  can  awaken  that  sensation,  you  will  be  jn-etty 
sure  of  your  v'^erdict. 

§  70.  Prohahilities  and  Possibilities. —  Probabilities  are 
of  more  value  than  possibilities.  Juries,  like  other  people, 
attach  more  wci<2:ht  to  them.  They  are  extremely  valuable 
in  reply,  and  should  bo  made  the  most  of.  Opportunities 
which  the  witnesses  had  of  seeing  or  knowing  that  which 
they  depose  to  is  also  a  matter  of  the  highest  moment. 
The  means  of  forming  a  judgment  is  another,  and  all  these 
may  be  used  with  a  jury  in  short  and  terse  argument  for  the 
purpose  of  obtaining  an  adverse  opinion  to  the  evidence, 
without  the  necessity  of  asking  them  to  say  it  is  perjured. 
Exhaust  all  argument  before  you  come  to  that,  unless  you 
know  that  perjury  has  been  committed,  and  then  come  to  it 
boldly  and  at  once,  without  giving  the  perjurer  an  opportu- 
nity of  escape.  You  will  have  observed  that  you  have  left 
for  a  moment,  but  for  a  moment  only,  the  line  marked  out, 
of  dealing  with  your  opponent's  case  before  presenting  your 
own.  But  it  is  necessary  in  order  to  contrast  the  evidence, 
and  will  materially  assist  you  in  dealing  with  that  of  your 
opponent.  It  will  not  interfere  with  the  course  of  your  ar- 
gument, but  will  be  advantageous  to  it  when  you  come  to 
review  the  facts  of  your  own  case. 

It  need  scarcely  be  said  that  m  examining  the  opposing 
evidence  you  will  not  fail  to  remark  the  points  of  contradic- 
tion, or  any  important  variance  in  the  versions  of  the  differ- 
ent witnesses,  or  neglect  to  point  out  the  improbabilities  of 
the  theory  advanced  on  the  other  side,  or  to  show  that  the 
case  does  not  cover  the  ground  occupied  by  your  own. 

§  71.  Presenting  your  own  Testimony. — Having  gone 
through  the  material  witnesses  and  disposed  of  them  as  far 
as  possible,  or  left  them  to  be  routed  by-and-by,  the  next 
duty  will  be  to  bring  your  own  evidence  to  the  front  and  once 
more  present  your  case  to  the  jury.  You  may  now  collate 
your  testimony  as  given  by  the  several  witnesses,  and  show 
the  case  in  its  completeness  and  consistency. 


AVOID  COMMON-PLACE  SAYINGS.  101 

At  all  times  you  should  be  concise,  but  especially  at  this 
stage,  and  as  short  as  may  be.  If  you  are  not  a  good 
speaker,  it  will  be  better  to  be  brief,  because  indifferent 
speaking  does  not  tell  very  much  ;  if  you  are  a  good  speaker, 
because  good  speaking  tells  a  good  deal.  A  good  speech, 
however  short,  goes  all  the  way;  but  the  stretch  of  mere 
windv  talk  invaritibly  stops  short  of  its  object.  But  even  a 
good  speaker  should  guard  against  smothering  his  points 
with  too  many  words  ;  the  most  fluent  advocates  require 
most  pruning  at  tbc  commencement.  All  you  want  is  to  so 
place  your  facts  that  they  will  stand  out  boldly  defined,  like 
fruit  upon  a  wall-tree  Avhere  there  is  not  too  much  wood. 
Almost  a  l)arrenness  of  language,  rather  than  an  exuberance, 
will  be  benciicial.  You  must  avoid  clothing  a  fact  with  the 
drapery  of  fine  language,  and  also  the  making  too  many 
points  at  once.  Do  not  present  them  like  a  bunch  of  grapes, 
or  half  of  them  will  be  unseen.  Let  each  be  made  distinctly 
and  separately,  as  though  it  were  a  work  of  art,  and  made 
for  the  jury's  critical  examination  ;  and  when  once  made, 
let  it  ah)nc. 

Having  thus  presented  your  points  in  detail  and  made  the 
best  exhibition  of  them  separately,  you  may  now  marshal 
them  together  and  bring  them  up  once  for  all  in  a  body. 
To  use  a  military  phrase,  which  doubtless  most  of  my 
readers  will  understand,  you  may  have  a  "  march  past"  to 
conclude  with,  and  that,  to  my  judgment,  is  a  most  effective 
mode  of  showing  the  strength  and  equipment  of  your 
forces. 

§  72.  Avoid  Common- Place  Sayinys. — There  is  a  matter 
which,  but  for  its  constant  recurrence,  I  should  not  think  it 
necessary  to  mention,  and  that  is,  that  conventional  phrases 
should,  as  a  rule,  be  avoided ;  so  should  stale  adages,  which 
from  common  use  become  only  one  remove  from  slang  it- 
self ;  they  show  a  poverty  of  ideas  and  a  lack  of  originality, 
besides  enfeebling  your  address.  A  man  docs  not  do  him- 
self justice  when  he  has  recourse  to  a  common-place  saying 
for  the  purpose  of  illustrating  a  point.     It  is  neither  orua- 


102  HINTS  ON  ADVOCACY. 

.mental  nor  argumentative,  and  is  more  adapted  to  the  Peep- 
sliow  than  the  Forum.  But  the  great  danger  attending 
common-phiccs,  is  that  they  are  so  feeble  and  so  easily 
demolished.  What  is  the  use  of  "  Gentlemen,  there  is  an 
old  saying  tliat  good  wine  needs  no  bush,"  etc.,  etc.,  against 
a  speaker  who  follows  with  sound  logical  argument ;  or  if 
it  be  a  matter  of  pure  inference,  who  meets  such  rubbish 
with  the  strong  and  forcible  language  of  common  sense? 
The  "  old  saying"  may  provoke  a  laugh,  but  the  new  say- 
ing is  the  one  that  will  make  the  impression. 

§  73.  Illustration  ivhen  Proper. —  Not  that  illustrations 
are  to  be  ignored  ;  they  are  among  the  most  useful  of  all 
the  means  emph)yed  by  the  rhetorician.  They  bring  home 
your  meaning  with  a  force  and  power  that  nothing  can  sur- 
pass ;  but  the  illustration,  if  nothing  else,  should  be  original. 
It  should  l)e  a  flash  from  your  own  mind,  not  a  mere  reflec- 
tion of  some  one  else's  lantern,  however  brilliantly  it  may 
burn.  Whately  says  :  "  There  is  very  little,  comparatively, 
of  energy  produced  by  any  metaphor  or  simile  that  is  in 
common  use,  and  already  familiar  to  the  hearer."  An 
illustration,  however  homely,  if  original  and  apt,  is  always 
pleasing  and  forcible. 

§  74.  Avoid  Amotion. —  I  have  already  advised  the  ad- 
vocate asrainst  a  too  liberal  exhibition  of  emotion.  It  need 
scarcely  be  added,  that  appealing  to  the  passions  of  a  jury 
m  reply  in  a  direct  manner  is  out  of  place  and  unfair.  They 
are  not  to  determine  by  passion  or  feeling,  and  attempts  to 
rouse  the  emotions  may  mislead  the  judgment.  The  sym- 
pathies of  the  jury  are  a  proper  subject  to  reach,  if  you  can 
do  it  by  the  facts  and  not  by  meretricious  sentiment ;  this 
is  a  legitimate  exercise  of  the  art  of  advocacy  and  of  the 
powers  of  eloquence  ;  and  the  art  consists  in  so  presenting 
the  facts,  that  they  will  accomplish  that  which  you  are  for- 
bidden to  attempt.  But  it  would  be  presumptuous  in  me  to 
discuss  those  higher  gifts  of  the  orator,  which  can  never  be 
learnt  or  acquired.  All  I  intend  to  say  is,  that  any  attempt 
to  influence  a  jury  by  an  appeal  to  their  feelings,  is  certain 


elp:ments  or  a  good  reply. 


103 


to  meet  with  reprobation.  It  is  clumsy  and  coarse  at  the 
best,  and  as  bad  as  an  open  act  of  intimidation  ;  if  you  can 
not  reach  their  sympathies  without  a  violent  attack,  you  had 
better  rest  upon  your  facts,  and  reserve  your  pathos  for 
your  client. 

§  75.  Do  not  Introduce  Prejudice. —  Nor  will  you  ever 
succeed  in  getting  the  judge  with  you,  if  you  openly  attempt 
to  introduce  prejudice.  It  is  a  kind  of  rhetorical  burglary, 
which  none  but  those  who  can  not  effect  their  object  by 
other  means  would  ever  perpetrate.  It  is  logically  wrong 
as  well  as  morally.  If  the  circumstances  are  such  as  natu- 
rally excite  the  sympathies  of  the  jury  in  favor  of  your 
client,  you  have  no  need  to  make  a  flourish  of  trumpets  to 
announce  the  fact ;  if  they  are  not  such,  you  will  fail  to 
move  them  by  the  employment  of  feeble  arts  for  that  pur- 
pose ;  besides  which,  you  will  probably  set  the  judge  against 
you,  if  not  against  your  case  ;  for  you  may  be  sure  that  in 
his  desire  to  do  justice  between  the  parties,  he  will  do  his 
best  to  prevent  your  winning  by  unfair  means  ;  if  it  unhap- 
pily follow  that  you  lose  a  good  case  by  his  endeavor  to 
defeat  an  unfair  attempt  to  win  it,  the  fault  will  not  be  his, 
but  yours. 

§  76.  The  Elements  of  a  Good  Rej^ly. — A  reply  should 
be  comprehensive  and  compact ;  it  should  be  temperate,  as 
well  as  bold.  In  its  moderation  will  be  its  strength.  Vio- 
lence of  language  is  invariably  weak  ;  loudness  of  tone,  but 
a  noisy  accompaniment  at  the  best,  which  stuns  the  ear 
instead  of  making  the  speaker  heard.  With  a  tone  always 
above  the  natural  key  there  can  be  no  modulation,  which  I 
take  to  be  the  music  of  oratory  ;  the  effect  of  which  is  to 
entertain  while  the  feast  of  reason  proceeds. 

Lord  Brougham  said  of  Erskine  :  "  Juries  have  declared 
that  they  felt  it  impossible  to  remove  their  looks  from  him 
when  he  had  riveted,  and  as  it  were,  fascinated  them  by  his 
first  glance.  Then  hear  his  voice  of  surpassing  sweetness, 
clear,  flexible,  though  exquisitely  fitted  to  strains  of  earnest- 
ness,"      "His  action,"   says  Espinasse,  "  was  always  ap- 


104  HINTS  ON  ADVOCACY. 

propriate,  chaste,  easy,  natural.  *  *  *  -pi^g  tones  of 
his  voice,  thougli  sharp,  were  full,  destitute  of  any  tinge  of 
Scotch  accent,  and  adequate  to  any  emergency — ahnost  sci- 
entifically modulated  to  tlie  occasion.^ ^  Speaking  of  action, 
I  may  say,  that  all  the  advice  ever  given  by  would-be 
teachers  of  the  art  of  speaking,  as  to  gesture,  is  absolutely 
worthless.  A  good  speaker  has  a  natural  and  ai)propriate 
gesture  ;  a  bad  speaker  has  none  at  all.  You  can  no  more 
learn  to  gesture,  than  you  can  learn  to  be  handsome. 

§  77.  Do  not  Exaggerate. — "Whatever  you  exaggerate, 
you  weaken,"  said  the  present  Solicitor-General  in  consul- 
tation a  short  time  since;  a  maxim  worth  remembering, 
both  in  opening  a  case  and  replying.  You  may  overdo 
your  own  facts,  or  say  too  much  against  those  of  your  op- 
ponent ;  and  it  is  a  good  thing  at  the  bar,  as  soon  as  you 
can  do  so,  to  "  let  your  moderation  be  known  unto  all 
men."  And  moderation  in  voice  is  no  less  pleasing  than  in 
language.  I  have  heard  some  men  shout  so  in  reply,  that 
you  would  have  thought  the  jury  some  poor  shipwrecked 
wretches  on  a  rock,  while  one  from  shore  was  trjing  to 
make  himself  heard  above  the  tempest,  and  I  have  won- 
dered what  the  feelings  of  the  shipwrecked  ones  must  be  as 
they  listened  to  this  thundering  Genius  of  the  storm. 

§  78.  Tlie  Peroration. — A  word  as  to  the  Peroration, 
which  should  not,  like  the  end  of  a  squib,  be  all  bang,  nor 
like  the  finish  of  a  rocket,  all  stars  above  every  one's  head ; 
but  it  should  be  a  common-sense  and  pleasant  finish  —  at- 
tractive, impressive  and  as  polished  as  may  be.  It  should 
leave  upon  the  mind  a  pleasing  recollection.  It  should  be 
well  construed,  appropriate  and  short.  As  the  exordium  is 
intended,  with  a  few  well  chosen  words,  to  secure  the 
hearer's  attention,  so  the  peroration  is  designed  to  leave 
upon  his  mind  the  satisfaction  that  his  attention  has  been 
well  l)e.stowed.  One  or  two  instances  of  well  turned 
forensic  perorations  by  eminent  advocates,  I  have  selected 
as  examples  of  conciseness,  brevity  and  beauty,  which  will 
be  found  in  another  chapter. 


LOUD  BROUGITAM.  106^ 

§  79.  Lord  Brougham  on  tJie  JJuty  of  an  Advocate. —  I 
have  thought  it  right  to  conchKlo  this  sul)ject  hy  n^fci-i'iiig 
to  the  extruorcJiiuirj  hinguage  used  by  Lord  Brougham  in  a 
very  celebrated  case,  which,  I  believe,  has  misled  a  great 
many  more,  to  the  danger  of  their  unfoilunate  clients  as 
well  as  the  peril  of  their  own  prospects.  The  young  are  too 
apt  to  believe  what  a  great  man  says,  especially  if  he  be  an 
authority  in  the  })rofcssion  they  foHow.  (ireat  men  often 
utter  small  sayings,  which  would  not  be  listened  to  if  ordi- 
nary me)\  said  them,  and  nothing  is  more  foolish  than  to 
take  even  a  wise  man's  sayings  without  examining  them  for 
ourselves.  It  is  not  because  a  great  or  a  wise  man  says  a 
thing  that  we  are  to  implicitly  believe  and  blindly  follow  it ;. 
and  I  take  leave  to  say  that  an  honorable  man,  if  he  thinks 
seriously,  must  disagree  with  the  following  proposition  of 
Lord  Brougham,  who  was  certainly  impetuous,  however 
great : 

"There  are  many  whom  it  may  be  needful  to  remiud,  tluit  an  advo- 
cate—  by  the  sacred  duty  of  his  connection  with  his  client  —  knows,  ic 
the  discharge  of  that  office,  but  one  person  in  the  world — that  client  and 
none  other.  To  serve  tliat  client  by  all  expedient  means;  to  protect 
that  client  at  all  hazards  and  costs  to  all  others  (even  the  party  already 
injured),  and,  amongst  others,  to  himself,  is  the  highest  and  most  un- 
questioned of  his  duties.  And  he  must  not  regard  the  alarm,  the  suffer- 
ing, the  torment,  the  destruction,  wliich  he  may  bring  upon  any  others.. 
Nay,  separating  even  the  duties  of  a  patriot  from  those  of  an  advocate, 
he  must  go  on,  reckless  of  the  consequences,  if  his  fate  should  unhap- 
pily be  to  involve  his  country  in  confusion  for  his  client." 

■  Although  some  portion  of  this  sweeping  proposition 
might  be  assented  to,  and  especially  in  the  circumstances 
which  called' them  forth,  there  is  surely  much  that  an  hon- 
orable man  would  shrink  from  even  though  he  give  full 
scope  to  the  meaning  of  the  word  "  expedient."  In  the 
impetuosity  of  advocacy,  such  as  Brougham  was  stirred  up 
by  the  occasion  to  employ,  it  might  have  been  excusable  to 
use  su«h  language  ;  but  if  it  be  examined,  its  propositions 
can  scarcely  be  assjuted  to. 


106  HINTS  ON  ADVOCACY. 

§  80.  Criticism  on  his  Words. —  An  advocate  can  hardly 
■claim  a  higher  privilege  than  his  client  could  claim  for  him- 
self, were  he  defending  his  own  cause.  Would  he  be  per- 
mitted to  disregard  the  suffering,  the  torment,  the  destruc- 
tion which  he  might  bring  upon  others?  And  under  what 
circumstances  could  the  expediency  of  bringing  down  such 
overwhelming  calamities  arise?  If  it  could  never  be  expe- 
dient, all  the  rest  of  the  sentence,  with  its  catalogue  of 
evils,  might  have  been  left  out.  If  it  could  be  expedient, 
when? 

Assume  a  witness  to  have  been  thirty  years  ago  sen- 
tenced to  transportation  ;  that  he  had  become  since  a  nour- 
ishing merchant  in  England  :  was  surrounded  with  a  family, 
and  enjoyed  the  society  of  many  friends,  to  all  of  whom 
the  history  of  his  early  life  was  happily  unknown.  He 
•comes  into  the  witness-box  to  depose  to  some  fact  material 
to  the  issue,  and  gives  his  evidence.  Would  it  be  tolerated 
that  counsel  should  ask  if  thirty  years  ago  he  was  trans- 
ported ?  But  suppose  the  counsel  thought  it  ' '  expedient ' ' 
to  l)ring  it  out.  I  presume  he  is  to  be  the  sole  judge  of  the 
expediency.  What  would  follow?  The  ruin,  perhaps,  of 
the  witness,  the  shame  of  his  friends,  and  the  misery  of  his 
family !  No  one  else  on  earth  is  to  be  considered  but  tlie 
client  who  is  bringing  his  action,  it  may  be  on  a  paltry  bill 
of  exchange.  It  seems  to  me  that  such  a  course  of  advo- 
cacy would  be  cruel  and  unjustifiable. 

An  advocate  should  be  tender  of  the  feelings  of  others, 
although  engaged  in  the  "  sacred  service"  of  his  client; 
and  above  all  things  he  ought  to  be  the  guardian  and  not  the 
destroyer  of  private  character ;  he  should  observe  the 
.golden  rule  of  "  doing  unto  others  as  he  would  be  done 
by,"  nor  should  he  lose  or  suspend  the  feelings  of  a  Chris- 
tian and  a  gentleman;  he  should  regard  "the  alarm,  the 
suffering,  the  torment,  the  destruction  which  he  may  bring 
^jpon  others  ;  "  "to  serve  his  client  "  may  be  "  his  highest 
duty  as  on  advocate,"  but  it  is  yet  hoped  it  will  not  cause 


LORD  BROUGHAM. 


107 


him  to  forget  his  duties  as  a  man,  or  prevent  him  from 
throwing  up  his  l^rief  rather  than  do  a  dishonorable  action. 
Besides  this,  an  advocate  who  casts  destruction  broadcast 
may  involve  his  client  in  the  general  ruin,  and  is  sure  in 
any  event  to  injure  him  in  the  estimation  of  the  jury. 


108 


HINTS  ON  ADA'OCACY. 


CHAPTER  VII. 


-Opening  and  Closing  Defendant's 

Case. 


SECTION. 

81.  A  Hopeless  Case. 

82.  Wliere  to  Attack. 

83.  How  to  Attack. 

84.  Speeches  and — Speeches. 

85.  The  Replj'  must  be  borne  in 

Mind. 

86.  AiTangement  of  Evidence. 


SECTION. 

87.  Not  too  much  Recommenda- 

tion. 

88.  All's  well  that  Ends  Well. 

89.  Suniuiino:  up. 

90.  Anticipate  the  Reply. 

91.  Keep  a  good  Look-Out. 


Opening  the  defendant's  case  is  a  matter  of  great  impor- 
tance, and  differs  materially  in  its  method  from  that  of  open- 
ing the  case  for  the  plaintiff. 

In  the  latter,  the  path  is  generally  clear ;  in  the  former, 
there  is  every  obstacle  that  the  circumstances  of  the  case 
or  the  ingenuity  of  your  opponent  can  interpose. 

§  81.  A  Hopeless  Case. —  If  ever  a  case  looks  hopeless, 
it  should  be  your  own  at  this  moment.  The  jury,  if  they 
had  to  deterrnine  the  case  now,  should  be  unanimous  in 
favor  of  your  opponent.  If  the  facts  are  not  strong,  how- 
ever, or  the  counsel  is  not  strong,  or  has  not  made  the  most 
of  his  case,  the  jury  will  be  divided,  but  none  of  them,  as 
I  once  heard  a  juryman  say,  "very  unanimous"  in  the 
plaintiff's  favor.  In  these  circumstances  your  verdict  is  as 
good  as  won.  Disaster  awaits  the  advocate  who  has  not 
the  jury  with  him  at  this  stage  of  the  case. 

In  a  season  of  such  depression  you  will  often  find  an  ex- 
traordinary accession  of  good  feeling  take  possession  of  his 
breast. 


WHERE  TO  ATTACK.  109 

Wouldn't  it  be  better  for  all  parties  to  agree,  and  for  an 
amical)lc  arrangement  to  be  come  to?  If  the  defendant's 
counsel  be  wise,  he  will  yield  to  no  such  blandishments.  The 
fljig  of  truce  is  but  the  signal  of  distress,  and  he  should 
push  on  his  advantages  to  their  legitimate  conclusion. 

I  once  heard  a  defendant's  counsel  say,  in  circumstances 
like  these,  when  his  opponent  asked  if  he  could  suggest  any 
course  : — 

"  Yes,"  said  he,  "  I  can — a  verdict  for  the  defendant." 

You  should  not  capitulate  when  you  have  won  the  battle, 
or  surrender  when  the  enemy  is  in  full  retreat.  I  have 
seen  a  good  many  do  this  without  knowing  it.  It  is  not, 
however,  invariably  the  fact  that  a  weak  case  for  the  plain- 
tiff is  at  its  strongest  at  the  close.  I  have  frequently  seen 
the  defendant's  counsel  strengthen  it  materially.  I  have 
also  seen  the  cross-examination  of  his  own  witnesses  abso- 
lutely prove  it. 

It  follows,  therefore,  that  very  great  discretion  and  skill 
are  re(|uisite  in  opening  the  case  for  the  defendant.  It  is 
surrounded  with  obstacles,  and  it  is  afar  more  difficult  task, 
than  opening  th;it  for  the  plaintiff. 

§  82.  Whei'e  to  Attack.  — The  first  thing  to  decide  is  at 
what  point  to  commence  the  attack.  A  good  deal  may  de- 
pend upon  this.  You  may  expend  much  energy  in  fruitless 
work.  The  weak  [)laces  are  undoubtedly  attractive,  but  as 
a  rule,  should  be  reserved,  because  at  a  later  period  the 
eifect  will  be  greater  and  the  demolition  appear  to  be  more 
complete.  Attack,  therefore,  the  strong  points  first,  but 
not  by  direct  blows.  You  cannot  knock  down  a  substantial 
wall  by  })utting  your  head  against  it.  There  are  improba- 
bilities and  inconsistencies,  perhaps,  or  partialities  to  deal 
with.  You  may  possibly  get  at  these,  and  shake  the  very 
foundat'ons  on  which  the  whole  fabric  rests. 

If  you  have  accomplished  anything  by  cross-examina- 
tions, it  will  be  of  inestimable  service  at  this  period  of  the 
case.      But  your  speech  must   be  directed  first  to  weaken 


110  HINTS  ON  ADVOCACY. 

before  you  bring  to  bear  the  reserved  forces  which  you  have 
stored  up  as  the  result  of  your  cross-examiuation. 

§  83.  How  to  Attack. —  That  which  was  to  be  avoided  in 
opening  a  case  for  the  plaintiff  is  the  strength  of  the  de- 
fendant's opening — namely,  argument.  I  do  not  mean  to 
affirm  that  you  can  demolish  an  isolated  fact  by  argument ; 
but  a  series  of  facts,  some  of  which  may  be  true  and  some 
false,  may  be  made  to  demolish  one  another.  You  may 
always  make  the  lean  kine  devour  the  fat,  and  one  cadaver- 
ous-looking fact  has  been  known  to  swallow  up  even  the 
substance  of  an  honest  case.  If  you  can  show  that,  assum- 
ing all  the  facts  to  be  true,  they  do  not  necessarily  prove 
the  plaintiff's  case,  you  will  have  gone  a  long  way  to  estab- 
lish your  own. 

By  this  mode  of  proceeding  you  will  have  already  dealt 
with  the  strongest  portions  of  the  case  against  you.  When 
you  arrive  at  the  weaker  parts,  avoid,  above  all  things,  a 
furious  and  vehement  onslaught ;  otherwise  they  will  appear 
more  formidable  than  they  really  are.  You  scarcely  want 
a  sledge-hammer  to  drive  home  a  tin-tack.  Let  the  force 
be  proportioned  to  the  task.  A  well-worded  argument  will 
be  infinitely  more  effective  than  fiery  declamation,  which 
often  reminds  me  of  the  process  of  hiving  a  new  swarm  of 
bees,  namely,  an  incessant  beating  on  a  hollow  jian. 

By  removing  some  of  your  opponent's  points  in  a  quiet 
but  eifeciive  manner,  the  jury  will  believe  you  must  be 
right  with  regard  to  many  others  that  you  have  not  removed. 
You  will  gain  credit  for  a  great  deal  more  than  you  have 
actually  accomplished,  and  your  success  will  have  a  retro- 
spective effect.  In  other  words,  the  more  respectable  facts 
will  get  a  bad  character  by  being  found  in  company  with 
those  which  you  prove  to  be  weak  and  corrupt.  Associa- 
tion, whether  of  ideas,  facts  or  people,  has  a  great  influ- 
ence on  spectators,  even  as  the  surroundings  of  our  life 
impress  it  for  good  or  evil,  for  happiness  or  misery. 

It  often  happens  that  a  witness  is  called  for  the  plaintiff, 


SPEECHES..  Ill 

whose  evidence  is  worthless.  It  may  not  be  valueless  to 
you.  But  by  no  means  be  over  eager  to  attack  him.  He 
is  like  a  short  man  in  a  crowd  ;  and  if  you  want  to  make  use 
of  him  don't  tread  him  down,  but  carefully  Jiold  him  up. 
Keep  him  as  a  surprise  for  the  end  of  your  comments  on 
the  plaintiff's  witnesses,  and  then  hold  him  up  above  the 
crowd  and  make  him  the  principal  figure  in  the  group^ 
Whatever  he  has  said  in  your  favor  will,  of  course,  mate- 
rially assist  and  confirm  your  argument.  You  will,  in  fact, 
be  proving  your  case  by  the  opponent's  witnesses  — a  happy 
mode  of  conducting  a  cause  to  a  successful  conclusion, 
when  you  are  permitted  to  do  so.  An  admission  against 
the  l)arty  making  it  possesses  a  force  which  belongs  to  no 
other  class  of  evidence  except  documentary. 

§  84.  Speeches  and  —  Speeches.. — A  bad  speech  will  im- 
poverish the  best  of  cases.  It  is  like  dressing  a  millionaire 
in  rags.  Your  case  will  in  all  probability  be  judged  by  the 
speech  with  which  it  is  introduced,  and  first  impressions  are 
not  easily  removed.  A  bad  speech  hoists  the  liag  of  dis- 
tress at  the  outset,  and  although  he  may  excite  a  good  deal 
of  commiseration,  no  one  will  come  to  his  rescue. 

On  the  other  hand,  I  have  seen  many  a  case  won  by  the 
opening  speech  for  the  defendant.  Everything  seemed  to 
be  swept  away  before  it,  and  a  clear  field  left  for  the  evi- 
dence that  was  to  follow.  And  it  may  be  said,  if  once  the 
defendant's  counsel  gets  a  thorough  hold  upon  the  jury  in 
his  opening  speech,  the  case  is  as  good  as  won.  The  evi- 
dence will  appear  to  be  merely  supplementary,  to  confirm- 
the  jury  in  the  opinion  they  will  have  formed.  It  is  true, 
facts  are  more  powerful  than  argument,  but  when  argument 
and  eloquence  lay  hold  of  a  fact  that  is  not  absolutely 
sound,  they  will  press  it  out  of  all  recognition,  and  dispose 
of  it  as  though  it  were  a  bubble. 

There  is  scarcely  any  subject  which  men  study  less,  and. 
know  so  little  about  as  speaking.  There  is  nothing  they 
can  not  measure  more  accurately  than  its  influence  on  the 
human  mind.     The  best  case  may  be  ruined  by  a  bad  speech,. 


112  HINTS  ON  ADVOCACY. 

as  a  splendid  fortune  may  be  thrown  away  by  a  fool ;  while 
a  good  speech  will  impart,  or  appear  to  impart,  to  a  bad 
€ase,  something  of  its  own  excellencies.  There  is  nothing 
of  art  in  the  speeches  of  ordinary  advocates  ;  but  where  it  is 
judiciously  employed  against  an  advocate  who  has  none,  the 
result  will  scarcel}^  be  doubtful,  other  chances  being  equal. 
It  is  a  breech-loader  to  a  pop-gun. 

§  85.  Tlie  Reply  must  be  Borne  in  Mind. — The  fact  of  a 
reply  looming  in  the  distance,  should  always  be  borne  in 
mind.  You  must  anticipate  it  at  every  step,  and  so  shape 
your  own  arguments,  that  they  will  receive  as  little  damage 
as  possible  from  the  approaching  simoon.  A  fallacious  ar- 
gument is  bad  enough,  but  it  sometimes  w^ins  ;  a  false  one 
is  dangerous  and  generally  fatal.  Ir  will  place  you  in  the 
position  of  being  detected  in  an  act  of  deception.  So  will 
opening  a  piece  of  evidence  that  3'ou  cannot  prove,  or  as- 
serting that  something  has  not  been  proved  which  in  reality 
has  been.  These  are  blunders  in  advocacy  which  are  con- 
stantly being  made  to  the  detriment  of  clients  ;  not  made 
from  w^ant  of  practice,  but  for  lack  of  studying  advocacy  as 
an  art.  Practice  will  not  cure  these  errors.  The  carpenter 
who  makes  a  door  too  small  may  have  made  man}^  doors, 
but  his  blunder  comes  from  inaccurate  measurement.  When 
you  commence  to  address  the  jury,  they  Avill  adjust  them- 
selves io  the  task  of  listening,  as  though  they  were  about 
to  be  entertained  with  the  second  act  of  an  amusing  drama. 
They  will  readily  yield  you  their  attention,  and  be  curious 
to  know  what  answer  you  will  make  to  all  that  has  been 
urged  on  the  other  side.  I  have  seldom  known  them  to 
make  up  their  minds  at  this  stage  of  the  case.  They  may 
or  may  not  believe  all  the  evidence  ;  but  whether  they  do  or 
not,  they  will  accord  you  a  patient  hearing.  But  the  curi- 
'Osity  of  the  jury  may  be  quickly  gratilied.  You  may  lose 
their  attention  and  your  case  by  a  few  sentences,  or  by 
hobbling  along  as  though  you  were  doing  penance  for  your 
i  client. 

After  a  few  unimportant  but  engaging  sentences,  a  good 


ARRANGEMENT  OF  EVIDENCE.  113 

speaker  will  continue  to  stimulate  the  curiosity  of  his 
hearers  by  some  remark  which  either  wins  their  admiration 
or  throws  a  flash  of  light  upon  some  unobserved  part  of  the 
<;ase.  Persistently  exciting  anew  the  attention  is  one  of  the 
great  principles  of  the  art  of  speaking.  Anew  simile,  an 
original  remark,  or  a  well  turned  period  are  all  means  to 
this  end  in  a  well  conceived  speech. 

Having  disposed  of  the  weaker  points  of  your  opponent's 
case  and  attacked  the  strong  ones  by  well  arranged  argu- 
ment, the  next  duty  will  be  to  present  your  own  facts,  and 
in  doing  this  the  great  rule  to  observe  is  to  arrange  them 
with  due  regard  to  probabilities.  This  is  not  always  done  ; 
it  is  sometimes  not  even  thought  of.  The  same  facts  may 
be  so  ill  arranged,  that  collateral  circumstances  (never  to 
be  lost  sight  of,  although  irrelevant  as  evidence)  may  raise 
the  strongest  improbabilities  against  you.  On  the  other 
hand,  hy  a  skilful  arrangement,  the  opposite  effect  will  be 
produced. 

§  86.  Arrangement  of  Evidence. —  A  great  deal  will  de- 
pend upon  an  artistic  arrangement  of  your  evidence  at  this 
stage,  so  that  it  may  not  only  stai<id  out  in  the  best  light, 
but  be  so  placed  that  its  position  may  cast  your  opponent's 
.  as  much  as  possible  into  the  shade.  As  before  observed, 
contrast  plays  a  great  part  in  advocacy.  But  mere  naked 
contrast  is  not  all  that  you  can  make  of  your  facts,  if  they 
are  in  contradiction  to  those  of  your  opponent.  You  will 
have  but  half  learnt  your  art  if  you  rest  here.  Contrast 
the  opposing  facts  as  forcibh^  as  you  can  by  all  means,  but 
so  place  them  that  your  own  loill  appear  to  be  the  more  nat- 
ural lohen  regarded  in  connection  with  surrounding  circum- 
stances. If  you  place  two  young  people  of  opposite  sexes 
near  a  church  door,  it  will  look  much  more  like  a  wedding 
than  if  you  seat  them  in  the  stall  of  a  theatre.  And  if  you 
make  the  bells  ring  while  they  are  coming  from  the  church, 
the  jury  will  undoubtedly  believe  they  have  just  been  mar- 
ried, though  neither  the  church  nor  the  bells  would  be  evi- 
dence of  the  ii'i  irriage. 


114  HINTS  ON  ADVOCACY. 

When  you  have  to  deal  with  evidence  which  is  eccentric, 
or  absurdly  exaggerated,  you  need  not  labor  as  though  it 
were  worthy  of  the  grave^^t  consideration  —  simply  point  out 
its  o-i-otesqueness,  as  though  the  matter  were  worthy  of  no- 
tice on  that  account  only. 

If  a  Avitness  has  sworn  to  something  contrary  to  all  hu- 
man experience,  you  need  not  weary  the  jury  by  arguing 
that  such  evidence  is  unreliable.  It  is  when  you  approach 
facts  within  the  i-ange  of  probability,  and  deposed  to  by 
trustworthy  witnesses,  that  your  powers  of  argument  will 
be  put  to  the  test.  Probabilities  must  here  be  relied  upon, 
and  the  smallest  circumstance  will  often  prove  of  the  great- 
est importance.  The  case  will  resemble  a  puzzle  composed 
of  a  number  of  pieces  which  tit  into  one  another.  If  there 
were  duplicates  of  some  which  did  not  belong  to  it,  you 
would  examine  the  edr/c\s,  the  cohr,  and  the  grain  of  the 
wood,  m  order  to  detect  the  true  from  the  false.  In  like 
manner  you  must  deal  with  the  facts  of  your  opponent's 
case,  when  they  conflict  with  yours,  and  yet  seem  to  fit  in 
with  surrounding  circumstances. 

But  in  whatever  difficulties  you  may  find  yourself,  there 
should  be  no  distressful  laboring.  A  ship  makes  little  prog- 
ress when  she  labors. 

§  87.  JSTot  too  much  Recommendation. — If  your  witnesses 
are  respectable,  you  need  not  detract  from  their  respecta- 
bility by  over  proclaiming  it.  The  jury  will  believe  your 
witnesses  to  l)e  ordinarily  respectable,  unless  you  take  over- 
much pains  to  convince  them  of  it.  It  is  only  counterfeit 
character  that,  like  counterfeit  beauty,  requires  a  good  deal 
of  touching  up. 

Where  a  good  witness  is  cross-exainined  as  to  character,  it 
is  as  good  as  vouched  for  by  the  other  side. 

If  you  saw  a  man  being  led  down  Fleet  Street  by  another 
who  kept  shouting,  "  Here's  an  honest  man  !  Look  at  this 
honest  man  !  "  you  would  suspect  the  pair  of  some  roguish 
design  upon  your  credulity.     The  worst  recommendation  a 


all's  well  that  EiNDS   WELL.  115 

i)i;in  c-;iii  iiave  is  too  much  [)i":iisc',  and  there  is  no  worse  ad- 
vocacy than  making  a  person  impossihly  good. 

The  next  thing  to  observe  is  to  introduee  your  evidence. 
loith  avitno  to  effect,  "  Of  course,  of  course,"  1  hear  on 
all  sides.  But  it  is  not  of  course.  This,  like  a  good  many 
other  hints,  is  as  much  needed  by  many  experienced  advo- 
cates as  it  is  by  juniors.  Practice  is  not  sufficient  to  ])cr- 
fect  an  advocate.  Take  an  illustration  (if  not  too  humble), 
from  a  well  arranged  slio[)  window,  where  many  costly 
articles  arc  exhibited.  The  arrangement  is  a  matter  of  art 
and  study  ;  mere  practice  would  not  produce  its  effect.  It 
pleases,  a)id  you  can  scarcely  know  why.  It  is  because  no 
one  thing  offends  the  eye  b}'  obtruding  itself  upon  your 
notice.  The  harmony  produced  by  the  artistic  arrangement 
is  such,  that  tlw  leading  ohjeets.  attract  your  attention  with- 
out appearing  to  do  .so,  and  are  set  off'  by  the  surrounding 
articles.  Then;  is  no  crowding,  and  everything  is  dis- 
played. If  you  can  as  artistically  arrange  your  evidence  in- 
your  speech,  you  will  produce  an  effect  which  will  not  be 
easily  removed.  The  very  "  setting  out  "  of  your  case  may 
win  it. 

I  will  go  one  step  further,  and  affirm  that  if  the  plaintiff 
have  somewhat  the  better  case,  but  yours  be  the  better  ad- 
vocated, the  chances  will  be  immensely  in  your  favor. 

Avoid  parenthesis  as  much  as  possible  ;  but  if  you  era- 
})l()y  one,  let  it  be  for  the  purpose  of  emphasis.  It  requires 
some  skill  (not  so  much  the  skill  that  comes  from  practice, 
as  that  which  is  produced  by  careful  study)  to  do  this  ef- 
fectively. If  done  Avell,  your  parenthesis  will  stand  out 
like  the  principal  object  of  a  brilliant  pyrotechnic  display  ; 
but  if  ill  performed,  it  will  be  like  a  damp  center-piece, 
which  becomes  a  failure  and  the  darkest  spot  of  all. 

§  88.  AlVs  Well  that  Ends  TIW/.— The  best-worded  sen- 
tence you  can  form  should  end  your  speech.  A  pleasant 
rhetorical  tiourish  is  always  acceptable,  while  a  well  con- 
structed peroration  has  many  redeeming  qualities.  It  Avill 
smooth  over  many  a  rugged  point  that  has  discovered  itself 


116  HINTS  ON   ADVOCACY. 

during  the  progress  of  your  speech,  and  hearers  often  per- 
suade themselves  that  it  is  a  good  address  which  ends  well. 
The  jaded  horse  pricks  up  his  ears  at  the  end  of  a  long 
journey.  Nor  should  it  be  forgotten  that  speaking  does  not 
consist  in  mere  words  ;  the  effect  produced  on  the  mind  by 
a  piece  of  real  oratory  is  a  successioyi  of  images.  Men  do 
not  hear  a  great  speech  so  much  as  they  see  and  feel  it. 
Hence  it  is  that  they  weary  of  words  which  produce  no 
images.  The  child  turning  over  a  book  without  pictures  is 
•exactly  what  an  audience  is  to  the  mere  spouter  of  words. 

The  orator  is  gifted  with  a  magician's  wand,  which, 
waved  before  his  audience,  produces  scenes  in  which  the 
hearers  are  not  merely  spectators,  but  actors.  Their  sensa- 
tions are  quickened,  so  that  they  feel  the  influence  of  the 
■events  brought  before  them,  and  participate  in  the  joys  and 
sorrows  by  which  they  are  surrounded. 

I  do  not  mean  that  a  jury  should  be  artiiicially  or  hyster- 
icall}''  excited,  but  that,  l)y  a  proper  employment  of  art,  you 
should  cause  them,  not  merely  to  hear  what  you  say,  but  to 
perceive  the  picture  passing  through  your  own  mind,  and  to 
be  quickened  with  the  impulse  of  your  own  sensations. 

This  is  the  art  of  opening  the  defendant's  case.  If 
effectively  performed,  you  need  not  fear  the  reply,  although 
you  will  utter  no  syllable  without  a  thoughtful  regard  to  it. 

§  89.  SumniiiKj  Up. — A  few  words  will  suffice  as  to  sum- 
ming up  tlie  defendant's  case.  Not  that  it  is  by  any  means 
an  unimportant  branch  of  advocacy.  On  the  contrary,  it  is 
as  invaluable  as  any  privilege  the  advocate  possesses.  It 
should  be  remembered  that  summing  up  your  evidence  is 
not  a  repetition  of  the  opening  speech,  in  which  you  ana- 
lyzed the  plaintiff's  evidence  with  sufficient  skill  to  show 
how  worthless  some  of  it  was,  and  what  residuum  was  left 
to  be  disposed  of  by  your  «wn  witnesses.  If  you  i)erf()rmed 
that  duty  half  as  well  as  I  conceive  you  did,  the  parts  that 
you  eliminated  are  gone  forever.  It  only  remained,  there- 
fore, to  meet  the  matters  that  required  answering  with  evi- 
•  dence   on    your  part.       You  have  now  abundant   scope  for 


ANTICIPATE  THE  KEI'LY 


117 


your  powers  of  reasoning,  and  for  analytical  comparison. 
There  may  he  some  opportunity,  also,  for  something  of 
declamation,  of  eloquence,  and  earnestness — it  may  be  of 
pathos  itself.  But  if  so,  remember  it  is  the  j)athos  of  facts 
and  the  eloquence  of  facts,  too,  that  you  most  need  ;  if 
these  fail,  you  might  just  as  well  beat  a  tambourine,  and 
imagine  you  are  an  orchestra. 

It  is  not  absolutely  forbidden   to  argue  upon  evidence  an- 
tecedent to  your  own,  although  you  have  but  the  bare  right 
to  '*  sum  up."     The  sum  total   may  be  not  only  your  owr 
evidence,  but  your  evidence    su})[)lemented  in  matter  an. 
weight  by  the  evidence  of   the  plaintiff  and   his  witnesses 
No  rule  can  be  laid  down  in    this   particular,  nor  will   th 
judge  be  over  strict  in  keeping  you  upon  the  direct  line  o 
your  evidence. 

§  90.  Anticipate  the  RepJy. — As  the  reply  will  follow 
your  speech,  you  will,  of  course,  calculate  what  are  th( 
points  likely  to  be?  made  against  you  ;  and  if  you  have  an) 
knowledge  of  character  at  all,  you  will  know  what  points 
have  most  impressed  your  adversary.  Nearly  all  the  cards 
having  bc(Mi  played,  you  ought  to  know  exactly  what  are 
left  in  your  opponent's  hand.  You  must,  as  a  matter  of 
course,  strengthen  those  points  which  are  likely  to  be  as- 
sailed, and  bring  into  strong  prominence  those  portions  of 
your  case  which  are  established  l)eyond  the  reach  of  elo- 
quence. 

§  91.  Keep  a  Good  Look  Out.—  li  you  have  kept  your 
eyes  open,  you  will  not  be  misled  by  any  feint  that  may 
have  been  luade  by  your  opponent.  If  he  has  discovered  a 
weakness  in  your  case  which  you  did  not  perceive,  it  will  be 
little  short  of  a  calamity  for  your  client  when  he  comes  to 
reply.  This  so  often  happens,  that  the  greatest  vigilance  is 
necessary  from  the  moment  the  case  is  launched  till  the  last 
witness  has  been  re-examined. 

What  word  or  remark  of  a  witness  may  be  the  turning- 
point  in  a  case,  you  can  never  tell.  What  may  be  the  test 
which  the  jury  will  apply  to  the  evidence,  you  can  but  sur- 


118  HINTS  ON    ADVOCACY. 

mise  :  hut  that  no  word  should  escape  your  attention  is  as 
certain  as  that,  in  surveying-  the  ocean  bed,  no  rock  or  prom- 
inence can  be  left  unnoted  with  safety  to  the  mariner. 

One  further  observation  I  will  make.  In  summing  up, 
be  sure  you  exhibit  the  qualities  of  a  o()od  arithmetician, 
otherwise  you  may  upset  the  calculations  of  your  own  wit- 
nesses. The  jury  will  tolerate  no  false  casting  up.  They 
will  require  a  correct  total,  whatever  they  may  think  of  the 
individual  items.  Some  they  nniy  disallow,  others  they 
may  admit,  if  your  total  be  accurate  ;  if  not,  they  may  re- 
ject the  whole  with  disgust,  or  even  disappointment. 

Bear  also  in  mmd  that  if  you  have  two  twos  you  need  not 
labor  to  convince  the  jury  that  the  total  is  four  ;  and,  above 
all  things,  be  careful  that  you  do  not  attempt  to  prove  that 
it  amounts  to  live. 


LET  THERE  BE  NO  FEELING, 


119 


CHAPTER  Vlll. — The  Conduct  of  a  1*uosecuth3n 


SKCTION. 

92.  Let  there  be  no  Feeling. 

93.  ''  The  Prisoner  is  Guilty."" 

94.  Do  not  Argue  in  Opening. 

95.  Exiiggenition  to  be  Avoided. 

96.  Particular  Expressions  to  be 

Avoided. 

97.  State  the  Charge  Clearly. 

98.  The    Circumstances    of     the 

Case. 


si-:(;Tio>i. 
99.  The  Facts. 

100.  Trying  to  Prove  too  Much. 

101.  Police  Testimony. 

102.  Anticiputii-ig  the  Defense. 
10:5.  The  Usual  Defenses. 

101.  Explaining  Technicalities. 
10.").  Unnecessary  Details. 
100.  Cross-Examination. 
107.  Reply. 


It  may  l)e  well  to  give  some  hints  with  regard  to  this  by 
no  mc^ans  unimportant  branch  of  advocacy. 

§  92.  Let  there  he  no  Feeling. — Let  me  say,  then,  first  of 
all,  that  above  everything  it  is  important  that  an  advocate 
should  exhibit  no  feeling  in  the  conduct  of  the  prosecution. 
He  is  not  the  offended  party,  nor  the  minister  of  justice,  as 
he  is  erroneously  sometimes  called.  He  is  the  presenter  of 
the  accused  at  the  bar  of  justice,  and  is  the  last  person  who 
should  exhibit  emotion,  \yhocver  the  accused  may  be,  and 
whoever  the  accuser,  there  should  be  but  one  unswerving 
desire  on  the  part  of  the  advocate,  namely,  to  lay  the  facts 
of  the  case  before  the  tribunal  which  is  to  judge  of  them. 
Neither  the  shocking  nature  of  the  crime,  nor  the  heinous 
character  of  the  accused,  nor  the  exalted  rank  of  the  ac- 
cuser, should  disturb  the  mind  or  temper  of  the  advocate. 

But  it  is  not  in  prosecutions  for  crimes  of  the  deeper 
guilt  that  the  danger  of  excited  feeling  has  to  be  guarded 
against-       It  is  in   cases   such  as  libel,  where  the  circum- 


120  HINTS  ON  ADVOCACY. 

stances  may  be  particularly  aggravated,  and  the  accuser  a 
person  of  distinguished  position  in  society  ;  or  it  may  be  in 
some  other  misdemeanor  of  the  social  sort,  where  mortal 
vindictiveness,  rather  than  divine  justice,  seems  occasionally 
to  be  the  inspirer,  if  not  the  director  of  the  proceedings. 

But  whatever  may  be  the  nature  of  the  charge  or  the 
quality  of  accused  or  accuser,  let  there  be  no  feeling — at 
least  no  manifestation  of  it.  Nothing  can  be  worse,  either 
as  a  matter  of  abstract  justice,  or  as  a  matter  of  mere  advo- 
cacy. A  man  who  throws  feeling  into  a  prosecution 
awakens  an  opposite  sentiment  in  favor  of  the  accused. 
The  sense  of  fair  play  is  outraged  by  any  attempt  to  con- 
vict a  man  by  declamation  and  angry  expressions.  Is  he 
guilty?  That  is  the  question.  You  are  not  to  denounce 
the  crime  ;  that  has  no  doubt  been  committed  by  some  one, 
and  is  none  the  deeper  or  the  wickeder,  denounce  it  as  you 
will ;  you  are  not  to  denounce  the  man  ;  he  may  not  be 
guilty;  and  if  not,  shall  the  innocent  be  denounced?  He 
may  be  guilty  ;  what  then?  Are  3'ou  his  judge,  or — his  ex- 
ecutioner? "  Leave  off  from  wrath  before  it  be  meddled 
with,"  in  conducting  a  prosecution.  I  have  known  accused 
persons  acquitted  through  too  inter.se  a  desire  to  convict ; 
especially  in  cases  where  self-constituted  bodies  of  men  sup- 
port the  pu])lic  moralit}'  by  public  subscriptions. 

§  93.  "  The  Prisoner  is  Guilty.^' — The  next  thing  to 
remember  is,  never  to  say  that  the  prisoner  is  guilty.  You 
have  only  to  lay  facts  before  the  jury  from  which  no  other 
inference  than  that  of  guilt  can  reasonably  arise.  Guilty 
is  the  sum  total  of  inferences  and  probabilities  arising  from 
the  facts,  and  it  is  to  be  pronounced  only  by  those  who  are 
sworn  to  try  w'hether  he  be  guilty  or  not  guilty. 

§  94.  Do  not  Argue  in  Opening. — Another  error  to  avoid 
is  argument  at  the  opening  of  the  case  for  the  prosecution. 
At  this  stage  there  is  nothing  to  argue  (unless  you  want  to 
argue  that  you  are  telling  the  truth),  and  its  principal  effect 
will  be  to  throw  doubt  on  your  case.  Facts  that  require 
nursing  the  moment  they  are  presented,  must  be  weak  in- 


EXAGGERATION  TO  BE  AVOIDED.  121 

deed  ;  and  you  may  depend  upon  it,  such  swaddling-clothes 
will  never  keep  life  in  them.  What  can  be  stronger  or 
healthier,  than  a  plain  statement  of  a  simple  fact? 

Aye,  but  if  it  be  not  a  simple  fact,  but  a  series  of  com- 
pound facts,  what  then?  It  is  a  mere  matter  of  arithmetic. - 
Reduce  the  compounds  to  simples  ;  and  for  such  analysis 
there  is  no  need  for  argument.  The  l)est  opening  of  a  case 
for  the  prosecution  is  a  clear  and  concise  statement  of  facts, 
without  embellishment,  without  argument,  and  without  feel- 
ing. It  may  be  necessary  to  explain  matters,  or  to  separate 
them,  or  to  connect  them,  or  to  treat  them  in  some  other 
manner  by  way  of  elucidation  ;  but  it  is  never  necessary, 
and  is,  therefore,  bad  advocacy  to  color  them,  or  in  any 
way  to  alter  their  appearance,  or  to  apply  to  them  a  far- 
fetched, and  possibly  foreign  meaning. 

§  95.  Exaggeration  to  be  Avoided. — Again,  all  exagger- 
ation is  to  be  avoided  ;  you  should  neither  magnify  that 
which  you  can  prove,  nor  open  a  single  fact  that  you  can- 
not. It  is  not  only  bad  as  a  matter  of  advocacy,  but  dis- 
honest as  a  matter  of  morality.  As  the  jury  approaches 
the  evidence  of  the  case  by  way  of  examination,  the  facts 
should  expand  upon  the  view  rather  than  diminish  ;  as  di- 
minish they  must,  if  you  exaggerate  them  in  your  opening. 
I  have  seen  a  jury  shocked  by  the  horrors  of  a  charge  in 
the  opening  and  smile  upon  the  evidence  in  support  of  it,, 
and  I  have  seen  nothing  left  of  the  charge  itself  except  the 
frothy  reply  of  the  advocate,  who  seemed  angry  that  a  man 
should  be  innocent.  No  art  should  be  employed  for  the 
mere  purpose  of  convicting  a  prisoner,  but  there  should  be 
no  abandonment  of  it  because  a  crime  happens  to  ])e  the 
sul)ject  of  your  advocacy.  It  is  your  duty  to  convince  the 
jury  of  the  guilt  of  the  accused  if  you  can  do  so  fairly. 
To  accomplish  this,  you  must  present  the  facts  in  their  nat- 
ural order  (which  is  art),  and  in  the  most  comprehensive 
maimer  (which  is  art),  and  in  the  most  simple  manner 
(which  also  is  art).  But  before  all  things,  before  even  the 
conviction  of  the  guilty,  it  should  be  your  care  to   refrain 


122  HINTS  ON  ADVOCACY. 

from  statiiiiL"  the  .smallest  matter  which  in  your  conscience 
you  do  not  believe  to  he  capable  of  proof.  If,  inadver- 
tently, this  be  done,  as  indeed  it  nmst  sometimes  from 
erroneous  instructions,  you  should  spare  no  pains  to  disa- 
buse the  minds  of  the  jury  of  the  impression  which  such  a 
statement  may  have  made.  You  can  never  tell  what  effect 
a  word  may  have  ;  a  verdict  may  be  intluenced  by  the  most 
tritlini::  observation.  For  this  I'cason  you  should  instantly 
repair  an}"  mistake  which  may  operate  against  the  accused. 

Another  error,  very  frequently  committed,  should  by  all 
means  be  avoided.  I  mean  that  of  telling  a  jury  that  you 
think  you  shall  be  able  to  prove  so-and-so  ;  or  you  think  you 
shall  be  al)le  to  show  so-and-so.  This  is  unfair  to  the 
prisoner  if  you  fail,  and  it  is  extremely  weak  if  you  suc- 
ceed. What  you  know  you  can  prove,  open  ;  what  you  are 
doubtful  about,  leave  for  the  evidence. 

§  96.  Particular  Expressions  to  he  Avoided.  —  Need  it 
be  said  that  expressions,  such  as  "  How  on  earth  could  the 
prisoner  have  known  so-and-so?"  and  "How  on  earth 
could  he  have  thought  so-and-so  ?' '  should  be  avoided  ?  And 
that  language,  such  as  "It  is  a  lie!  gentlemen,"  is  not 
graceful  or  dignified.  Nor  should  the  counsel  for  the  pros- 
ecution assume  to  himself  the  office  of  defending  the  pros- 
ecutor or  prosecutrix,  as  the  case  may  be.  He  may  do  so 
in  the  most  eificient  manner,  if  he  be  a  skilful  advocate  ; 
but  that  nmst  not  appear  to  be  the  main  object  of  the 
prosecution. 

With  the  clear  understanding,  then,  that  there  is  to  be  no 
struggle  for  a  verdict,  as  though  iniquitous  vehemence  were 
not  unbecoming  the  "  minister  of  justice,"  let  us  see  what 
course  of  proceeding  is  best  adapted  to  the  object  of  the 
prosecution,  namely,  that  of  the  ascertainment  of  the  truth. 

§  97.  St((te  the  Charge  Clearly. —  In  the  first  place,  the 
charge  against  the  prisoner  should  be  stated  clearly  and 
■  concisely ;  start  not,  my  junior  friend,  it  is  not  always 
stated  clearly  and  concisely  ;  nor  is  it  always  stated  ;  and  be 
not  surj)rised  when  I  say  that  it  seldom  is.       The  judge, 


STATE  THE  CIIAUOE  CLEARLY.  123 

geiienilly,  lia.s  to  tell  the  jury,  Jifter  all  the  speeches  and  all 
the  evidences  what  is  the  charge  against  him,  and  what  is 
the  nature  of  the  charge.  It  has  often  struck  me  as  remark- 
able, that  young  advocates,  as  a  rule,  both  in  prosecuting 
and  defending,  leave  out  the  oifense  stated  in  the  indict- 
ment. I  have  known  many  a  man  acquitted  almost  as  soon 
as  the  nature  of  the  charge  has  been  stated  upon  the  author- 
ity of  the  judge. 

Now,  there  are  many  ways  of  stating  a  charge,  Init  there 
is  only  one  way  to  inform  the  minds  of  the  jur}-  of  the  of- 
fense Avhich  the  accused  is  alleged  to  have  committed. 
And  the  tirst  necessary  ste[)  is  to  strip  it  of  the  legal  jargon 
in  which  it  is  enfolded.  Since  the  days  of  Babel  was  no 
mortal  language  less  "  understanded  "  of  the  people  than 
the  lawA^ers'  dialect ;  no  man,  however  deep  in  linguistics, 
will  ever  be  deep  enough  to  get  to  the  bottom  of  that  un- 
fathomable vortex. 

But  your  duty  is  clear ;  you  are  the  interpreter  of  this 
unknown  thing  to  the  people  or  "  the  country  "  before  you. 
Wrapped  as  the  simple  matter  is  in  the  manifold  incum- 
brances and  technicalities  of  the  law,  how  is  a  mortal  com- 
mon-sense jury  to  know  whether  the  enfolded  thing  before 
them  be  a  wolf  or  one's  grandmother?  But  do  not  think 
3U)U  have  made  it  intelligible,  until  you  have  reduced  it  to  the 
poor  phraseology  of  common  sense  ;  if  it  is  ever  necessary 
to  call  a  spade  a  spade,  it  is  among  people  who  use  it ;  and  if 
"  guilty  knowledge  "  or  "fraudulent  intent"  be  the  essence 
of  the  charge,  you  must  not  merely'  say  so,  but  tell  the  jury 
in  common  parlance  the  legal  meaning  of  the  terras.  Un- 
less they  understand  the  nature  of  the  charge,  they  will 
never  appreciate  thoroughly  the  liner  points  of  the  evidence, 
which  may  be  so  important  to  lead  them  to  a  just  conclusion. 
You  need  not,  however,  twaddle  on  to  an  unnecessary 
length,  like  a  horse  that  is  kept  going  by  many  bells  with 
unmeaning  music  ;  you  must  learn  to  put  the  meaning  of 
indictments  into  every-day  language,  and  then  you  will  re- 
duce it  to  simplicity  in  a  few  words. 


124  HINTS  ON  ADVOCACY. 

§  98.  The  Circumstances  of  tJie  Case.  —  You  will  next 
consider  whether  the  condition,  situation  or  circumstances 
of  the  prisoner  be  necessary  to  describe  ;  for  be  sure  that 
whatever  is  unnecessary  to  be  done  in  a  prosecution  should 
not  1)0  done.  It  may  l)e  that  out  of  the  circumstances  of 
the  accused  springs  the  motive  of  the  crime  ;  if  so,  proba- 
bilities spring,  too,  from  the  same  root,  and  that  is  impor- 
tant to  bring  before  the  jury  at  the  earliest  moment.  From 
his  position,  opportunity  may  be  given  ;  if  so,  there  is  prob- 
ability growing  up  and  strengthened.  From  the  situation 
of  the  accused,  temptation  —  fatalest  enemy — may  be  dis- 
covered. The  crime  first,  therefore — the  position  of  the  ac- 
cused next  ;  in  other  words,  crime,  motive,  opportunity 

§  99. —  Tlie  Facts  of  the  Case. —  Now  come  the  facts; 
but  be  it  remembered  that  nothing  is  to  be  stated,  remote 
or  near,  that  has  not  a  direct  bearing  upon  the  issue.  Ev- 
erything that  may  prejudice  the  jury — as  you  love  an  easy 
conscience,  and  value  your  own  character  for  honesty  — 
must  be  carefully  excluded  ;  and  al)ove  all  things  avoid  do- 
ing in  an  oblique  manner  that  which  it  would  be  unfair  to 
do  directly.  Nor  is  this  warning  unnecessary  ;  I  have  seen 
many  err  inadvertently  in  their  zeal  for  the  administration 
of  justice,  who,  in  a  matter  of  private  and  social  concern, 
would  guard  themselves  from  the  faintest  appearance  of 
unfairness. 

And  now,  let  me  again  say  ^'■order  and  arrangement,^^  if 
you  wish  the  jury  thoroughly  to  understand  the  statement 
you  have  to  make  ;  as  you  open  your  case,  so  should  the 
witness  be  called  to  prove  it ;  the  continuity  of  circum- 
stances must  not  be  broken,  although  there  may  be  divers 
branches  of  the  subject ;  there  may  be  many  chapters,  but 
they  were  enacted  in  order  in  the  real  history  you  are  un- 
folding. If  you  want  a  model,  go  to  the  trial  of  Castro  for 
perjury ;  observe  its  chapters,  its  situations,  its  develop- 
ment. 

You  will  sometimes  find  that  the  depositions  are  confused 
and  complicated.      Before  the  magistrates,  where  evidence 


TRYING  TO  PROVE  TOO  MUCH.  125 

is  taken  in  portions,  as  it  is  obtained,  and  in  the  course  of 
many  adjournments  or  remands,  it  is  next  to  impossible  to 
follow  any  rule  in  this  respect.  But  it  will  be  your  duty  to 
separate  and  arrange  the  various  portions  of  evidence  before 
presenting  them  to  the  jury. 

§  100.  'Lrying  to  Prove  too  Much. — It  is  extremely  im- 
portant that  you  should  not  allege  too  mu(;h,  or  you  may  in 
consequence  prove  too  little.  Nor  is  it  a  small  matter  that 
you  should  attempt  to  prove  more  than  you  can.  Better 
succeed  in  reaching  a  moderate  height,  than  fail  in  grasping 
what  is  beyond  your  compass.  Every  failure  produces  dis- 
appointment. It  disappoints  expectation  and  detracts  from 
the  merits  of  the  case,  if  not  from  the  merits  of  the 
counsel. 

"  Overlaying  the  case,"  as  it  is  called,  is  a  dangerous  pro- 
ceeding. A  number  of  witnesses  can  notagree  on  all  points  ; 
I  do  not  mean  in  words,  liecause  that  would  at  once  damn 
their  evidence,  but  I  mean  as  to  facts  themselves  ;  and  if 
you  call  a  number  of  witnesses,  the  chances  are  that  you 
will  call  a  number  of  contradictions  ;  and  the  moment  you 
get  one  witness  to  contradict  another  upon  any  point  how 
little  material  soever,  if  it  be  material,  the  jury,  as  a  rule, 
will  determine  that  portion  of  the  evidence  in  favor  of  the 
accused,  unless  other  circumstances  lead  them  to  -."  different 
conclusion.  You  will  have  given  him  already  the  benefit  of 
one  doubt. 

Then,  again,  among  your  multitude  may  creep  in  some 
one  or  two  of  a  disreputable  kind  ;  3T)u  may  not  know  them, 
but  your  "learned  friend,"  if  he  have  any  skill,  will  soon 
introduce  them  to  you  ;  and  if  their  character  or  evidence 
be  "shakes"  as  it  is  called  forensically,  it  will  lower  the 
average  of  the  whole  ;  at  all  events,  the  merits  of  your  case 
will  sink  with  it.  It  requires  a  number  of  respectable  wit- 
nesses to  buoy  up  a  case  laden  with  one  whose  character 
renders  him  unworthy  of  belief. 

It  is  just  as  well,  perha[)s,  not  to  convict  an  innocent 
man,   so  there  is  no  occasion  for  overmuch  xeal.     Justice  i 


12(i  HINTS  O.N   ADVOCACY. 

not  vindicated  by  the  sacrifice  of  a  victim,  l)ut  by  the  con- 
demnation of  the  guilty.  She  may  be  l^lind,  but  she  would 
much  rather  withhold  the  rod  until  you  can  assure  her  by 
unimpeachal)le  evidence  that  it  will  not  fall  on  the  innocent. 
J5e  careful,  therefore,  not  to  try  to  vindicate  her  too  much  ; 
in  fact,  in  conducting  a  prosecution,  do  not  try  to  vindicate 
anything. 

§  101.  Police  Testimony. — One  other  matter  there  is  to 
be  on  one's  guard  against,  and  that  is,  being  overdone  by 
police  testimony.  Very  few  policemen  are  really  untruth- 
ful, 1  believe  ;  and  very  few  would  unnecessarily  "  pile  on 
the  evidence  "  against  a  man  ;  but  all  are  zealous,  and  zeal 
is  a  force,  as  we  ail  know,  that  will  sometimes  impel  us  be- 
yond the  boundary  line  of  discretion.  They  require  to  bjB 
kept  with  a  steady  and  firm  hand  ;  for  much  zeal  on  their 
part,  like  too  much  anxiety  on  yours,  is  sure  to  operate 
against  what  the  prosecution  invariably  calls  "  the  interests 
of  public  justice." 

§  102.  Anticipating  the  Defense. — In  proceeding  with 
your  statement,  there  is  often  a  danger  of  being  led  into  an 
anticipation  of  the  defense  that  will  ])e  set  up  either  to  the 
whole  or  to  any  portion  of  it.  This  ought  never  in  a  pros- 
ecution to  be  yielded  to — if  for  no  other  reason,  at  least  for 
the  very  obvious  one  that  if  the  prisoner  be  defended,  you 
have  the  right  either  of  summing  up  or  of  replying.  Such 
expressions  as,  "  It  may  be  said  by  my  learned  friend," 
etc.,  etc.,  are  not  legitimately  a  part  of  an  opening  state- 
ment. But  it  is  by  no  means  improper,  in  favor  of  the 
accused  to  present  that  view  of  a  fact,  which  you  find  your- 
self obliged  to  deal  with  and  dispose  of.  The  moment  3'ou 
show  yourself  eager  to  convict,  the  jury  will  suspect  you 
or  the  prosecutor  of  vindictive  feeling,  one  of  the  worst 
symptoms  to  manifest  itself  either  at  the  bar  or  in  the  wit- 
ness-box. 

§  103.  Tlie  Usual  Defenses. —  There  are  two  answers 
only  to  a  charge — one  in  law,  the  other  in  fact.  These  re- 
solve themselves  in  practice  to  three: — 1.  The  prisoner  is 


THE  USUAL  DEFENSES.  127 

not  the  man  (mistaken  identity)  ;  2.  No  intention  to  com- 
mit the  act;  or,  3.  The  act  was  never  committed.  I  am 
speaking  now  of  the  nature  of  crimes  and  misdemeanors 
generally  with  whi(;h  advocates  have  to  deal  at  Assizes  or 
Quarter  Sessions  ;  but  I  am  not  ccn-tain  that  I  should  not  be 
perfectly  accurate,  if  I  applied  the  statement  to  the  whole 
of  the  offenses  in  the  statute  book  and  at  common  law. 

It  is  under  one  or  other  of  these  heads  that  the  various 
"defenses"  will  range  themselves.  Insanity;  No  proof 
of  property;  No  guilty  knowledge;  Consent;  and  so  on. 
This  being  the  case,  the  first  step  in  arranging  and  pointing 
the  evidence  is  to  ascertain  what  can  be  disputed  and  what 
is  incapable  of  denial.  A  prisoner  cannot  perhaps  deny  that 
he  did  a  certain  act.  He  is  either  justitied  then  in  law,  or 
excused  on  the  ground  of  insanity,  or  affirms  that  he  had  no 
guilty  knowledge  or  intent,  or  that  there  was  consent  to 
what  was  done.  It  will  be  easily  perceived,  where  the 
points  of  the  prosecution  will  require  to  be  made  good.  If 
you  expend  the  force  of  your  evidence  to  prove  identity 
wdien  the  main  defense  is  no  guilty  knowledge  or  intent  to 
defraud,  a  rogue  may  escape  from  justice  for  want  of  mere 
forensic  skill  on  your  part,  as  he  may  from  a  policeman  for 
want  of  handcuffs. 

Do  not  think  such  an  event  unlikely  to  happen,,  or  flatter 
yourself  it  will  not  happen  to  you  ;  you  will  be  a  miracle  of 
an  advocate,  or  will  never  have  a  case  at  all,  if  it  do  not. 
The  simple  rule  to  observe  then  is,  that  you  must  take  care, 
while  you  are  watching  one  hole,  that  the  prisoner  do  not 
escape  out  of  another. 

I  once  saw  a  man  tried  for  eml)ezzling  money,  the  price 
of  hay,  which  he  had  taken  from  a  rick  belonging  to  his 
employer  and  sold.  There  was  no  proof  that  he  had  ever 
had  the  money,  and  if  he  had,  there  was  no  proof  that  he 
had  received  it  for  or  on  account  of  his  master.  ]t  was 
contended  that  if  it  was  anything,,  it  was  stealing  the  hay. 
So  he  was  acquitted  and  charged  with  stealing  the  hay.. 
Argued    that    if    it  was    anything    it    Wiis    embezzling    the 


128  HINTS  ON  ADVOCACY. 

money,  for  he  h:id  authorit^-^  to  sell  the  hay  Acquitted. 
Not  because  he  was  not  guilty. 

§  104.  Explaining  Technicalities. — As  an  example  of  the 
necessity  of  a  clear  exposition  of  the  charge  against  the 
prisoner,  and  of  lucid  and  well  arranged  statement  of 
facts  in  opening,  together  with  a  proper  marshalling  of  evi- 
dence in  proof,  take  the  common  case  of  a  conspiracy,  the 
indictment  for  which  runs  to  the  following  effect :  That 
Brown,  Jones,  Robinson  and  Tompkins,  "  being  evil-dis- 
posed persons,  and  wickedly  devising  and  intending  to  de- 
fraud and  prejudice  certain  persons  hereafter  mentioned,  on 
the  1st  of  April,  did  amongst  themselves  conspire,  combine, 
confederate  and  agree  together,  falsely  and  fraudulently  to 
cheat  and  defraud  certain,"  etc. 

Now,  I  doubt  if  one  man  in  a  hundred  would  ever  know, 
where  unenlightened  as  to  the  legal  meaning  of  legal  phrase- 
ology, and  only  viewing  the  above  words  through  the  me- 
dium of  common  sense,  when,  if  ever,  he  would  be  in  a 
position  to  f^ay  "  guilty  "  or  "  not  guilty." 

§  105.  Unnecessary  Details. — There  is  nothing  more  wea- 
risome and  useless  than  the  dwelling  on  the  extreme  details 
of  a  case,  unless  they  are  of  importance.  It  may  be  that 
some  infinitesim!illy  small  matter  may  be  of  infinite  impor- 
tance ;  but  a  common-sense  advocate  will  discern  between 
the  important  and  the  merely  frivolous.  I  have  seen  hours 
wasted  in  an  examination  before  magistrates,  where  minutes 
would  have  been  sufficient  for  every  purpose  under  the  sun, 
whether  to  ease  the  minds  of  your  witnesses  or  to  hang  your 
man  —  or  somebody  else's  man  —  as  the  case  might  be. 

Q.  "Well,  you  went  up  to  the  door?  "    A.  "  Yes,  sir"'  (meekly). 

Q.  "What  did  you  do  then  —  did  anj^  one  else  go  with  you?"  A. 
"  Mrs.  Brown,  sir." 

Q.  "  Mrs.  Brown,  who's  Mrs.  Brown?  "     A.  "A  neighbor,  sir."' 

Q.  "Where  does  she  live?"  A.  "Next  door  to  Mrs.  Macdoodle's, 
sir.'" 

Q.  "Well,  how  came  Mrs.  Brown  to  go?"'  A.  "She  came  up  with 
me,  sir." 

Q.  "  Did  you  see  where  she  came  from?  "     A.  "  No,  sir." 


CROSS-EXAMINATION.  129 

•Q.  ''  Well,  you  went  to  the  door?  "    A.  "  Yes,  sir." 
Q.  "  Was  anybody  there?  "    A.  "Yes,  sir." 
Q.  '"Who?"     A.  ''A  man." 

Q.  "Well,  what  did  you  do  when  you   got   to  the  door?"     A.  "I 
linocked,  sir." 

Q.  "  Did  you  knock  more  than  once?  "    A.  "  No,  sir." 

Now,  all  this  time  has  been  taken  up  for  no  reason  what- 
ever, except  to  get  that  knock,  and  now  we  have  it,  it  is 
jDerfectl}^  useless,  except  to  enable  us  to  get  inside  where  we 
want  to  get,  for  the  purpose  of  examining  the  state  of  affairs 
there. 

§  106.  (J r OSS-Examination. —  It  is  not  necessary  to  re- 
peat what  has  been  said  in  a  former  part  of  this  work  with 
reference  to  the  cross-examination  for  the  prisoner.  You 
may  be  sure  that  a  copious  shower  of  questions  from  your 
opponent  will  rain  down  some  fact  or  other  which  will  assist 
the  prosecution.  He  must  be  a  skilful  advocate,  indeed, 
who  in  a  long  cross-examination  elicits  no  fact  against  him- 
self, or  lets  in  no  evid(ince  which  will  add  a  burden  to  his 
defense.  You  will,  therefore,  watch  every  question,  and 
note  the  answer  if  it  requires  to  be  re-examined  upon  or 
commented  upon  in  the  summing-up  or  reply.  I  have  seen 
men  convicted  by  being  defended  by  injudicious  advocates, 
although  they  themselves  may  not  have  known  it,  and  may 
have  forced  the  questions  which  brought  their  destruction. 
The  greatest  lawyer  that  ever  lived  might  be  no  advocate, 
and  it  is  difficult  to  conceive  of  a  very  young  advocate  being 
a  very  good  one.  At  the  same  time  he  must  get  experi- 
ence somewhere  ;  somebody  must  be  the  patient  for  him  to 
jjractise  upon  for  the  benetit  of  the  healthy  body  corporate. 
Still,  he  should  learn  as  far  as  possible  by  the  blunders  of 
others  rather  than  his  own,  and  Avill  have  a  fair  opportunity 
of  doing  so,  while  engaged  in  a  prosecution,  by  carefully 
watching  and  noting  where  a  question  is  clumsy  merely, 
and  where  it  is  wrong ;  by  considering  how  questions  should 
be  asked,  and,  more  important  still,  how  they  should  be 
framed,  so  as  to  bring  no  harm  to  your  case,  and  as  much 
good  as  possible. 

(9: 


130  HINTS  ON  ADVOCACY. 

§  107.  Rejjly. —  I  should  not  think  it  necessary  to  say  a 
word  as  to  the  reply  in  a  criminal  case,  but  that  I  have  seen 
advocates  so  vehement,  both  in  denunciation  and  "  earnest 
appeals,"  that  one  ahiiost  forgot  that  an  unhappy  wretch  in 
custody  was  the  occasion  of  it.  Calm  and  temperate  should 
at  all  times  be  the  voice  that  asks  for  the  condemnation  of  a 
fellow-creature.  Every  allowance  should  be  made  for  the 
common  infirmities  that  beset  us  :  every  portion  of  the  case, 
not  absolutely  covered  by  the  prosecution,  should  be  left 
unmolested. 


ruLlCE  COURT  CASES.  131 


CHAPTER  IX. — The  Conduct  of  a  Defense  in  a 
Criminal    Trial. 


SECTION. 

lOS.  Police  Court  Cases— When 

not  to  Defend. 
109.  Same— When  to  Defend, 
no.  What  to  do  after  Bill  Found. 
111.  Conduct  of  the  Trial. 


SECTION. 

112.  Kules    for  Cross-Examiiui- 

tion. 

113.  Cross-Examining  the  Police 

114.  When  to  call  Witnesses. 

115.  The  Speech  for  the  Defense. 
116..  Conclusion. 


Although  most  of  the  remarks  I  have  made  apply  equally 
to  criminal  as  to  civil  cases,  it  may  be  useful  to  give  some 
hints  especially  directed  to  the  conduct  of  a  criminal 
defense. 

§  108.  Police  Court  Cases — When  not  to  Defend. —  As 
inexperienced  advocates  are  frequently  before  the  magis- 
trates, in  their  professional  capacity,  it  may  not  be  without 
some  advantao;e  if  I  make  a  few  observations  on  the  con- 
duct  of  a  case  in  those  courts.  The  ntode  in  which  persons 
charged  with  crime  are  defended  at  the  Police  Court  has 
often  appeared  to  me  a  kind  of  preliminary  retribution  to 
that  which  is  to  come.  A  young  advocate,  who  has  had 
nothing  of  a  more  serious  nature  to  defend  than  a  charge  of 
drunkenness  or  assault,  is  suddenly  called  upon  to  pose  be- 
fore the  public,  in  a  case  of  wilful  murder  or  some  other 
offense,  where  a  committal  is  absolutely  certain.  How  is  he 
to  d©  justice  to  his  client?  There  is  only  one  way,  and  that 
is,  to  hold  his  tongue.  One  would  think  advocacy  the 
easiest  thing  in  the  world,  requiring  neither  training,  knowl- 


132  HINTS  ON  ADVOCACY. 

edge  nor  experience,  to  sec  how  perfectly  ready  the  young 
advocate  is  to  step  into  the  ai-euii  and  do  l):ittle  in  the  inter- 
ests of  the  accused  ;  as  if  an  advocate  were  made  by  being 
called  to  the  bar,  or  admitted  on  the  roll  of  solicitors,  or  by 
being  articled  as  a  solicitor's  clerk.  You  might  just  as 
well  expect  the  indentures  of  an  api)rentice  to  impart  a 
knowledge  of  his  handicraft .  When  a  young  solicitor  or 
clerk  is  instructed  to  defend  before  the  magistrate  under 
the  circumstances  indicated,  I  should  unhesitatingly  advise 
him  to  preserve  an  unbroken  silence.  Otherwise  he  is 
almost  sure  to  do  mischief ;  and  the  worst  mischief  is  that 
he  will  most  likely  tie  up  the  hands  of  the  counsel  engaged 
to  defend  before  the  ultimate  tribunal. 

It  is  possible  that  it  may  be  desirable  to  have  a  fact  or 
two  upon  the  depositions  ;  but  if  so,  it  will  require  an  advo- 
cate of  some  experience  to  ascertain  what  those  facts  shall 
be.  The  greatest  discretion  should  be  used  as  to  whether  a 
question  should  be  asked  or  not.  With  a  very  few  excep- 
tious,  no  cross-examination  should  be  administered  when  the 
case  is  to  go  for  trial. 

Instead  of  this  course  being  pursued,  a  long  cross-exam- 
ination is  often  indulged  in,  or  the  young  gentleman  who 
thinks  he  is  defending,  puts  as  many  questions  as  he  can, 
under  the  impression  that  questioning  is  cross-examination, 
and  then  answers  are  elicited,  detrimental,  if  not  destructive, 
to  every  chance  of  acquittal.  For  the  purpose  of  convict- 
ins:  unfortunate  wretches  who  are  charired  with  offenses,  the 
government  need  not  establish  pul)lic  prosecutors  wdiile 
young  advocates  defend  ;  for  these  gentlemen  can  administer 
questions  which  the  law  forbids  the  prosecuting  counsel  to 
put ;  and  what  is  more,  they  can  privately  question  the 
prisoner,  and  then  by  giving  the  information  so  obtained  in 
the  shape  of  questions  to  the  witnesses,  may  display  a 
knowledge  of  circumstances  only  consistent  with  the  pris- 
oner's guilt,  as  by  showing  that  he  was  present  at  the  scene 
of  the  crime,  when  probably  the  defense  is  to  be  an  alibi! 
I  am  afraid,  too,  that  a  good  many  innocent  persons  have 


WHEN  TO  DEFEND.  133 

succumbed  to  a  powerful  cross-examination  of  this  kind. 
Many  juvenile  advocates  seem  to  consider  that  cross-exami- 
nation consists  in  repeating  the  questions  of  the  prosecution 
with  the  prefatory  query — "Will  you  swear,  sir," — or  by 
way  of  variation  so  as  to  show  some  degree  of  originality — 
"  On  your  oath,  sir?  " 

.§  109.  Same — When  to  Defend. — There  may,  neverthe- 
less, be  cases  where  it  is  possible  to  avoid  a  committal  by 
bringing  all  the  facts  before  the  magistrate.  And  this  may 
be  done  sometimes  even  in  the  most  serious  charges.  But 
no  inexperienced  advocate  should  be  intrusted  to  defend 
under  such  circumstances.  It  was  successfully  done  some 
time  since  in  a  case  which  attracted  considerable  attention 
from  its  remarkable  circumstances.  A  woman  had  been 
murdered  in  a  very  shocking  manner  in  a  house  of  ill-fame 
in  London.  The  police,  as  is  customary,  obtained  the  all- 
important  clue,  and  it  was,  therefore,  necessary  to  obtain  a 
prisoner.  They  followed  it  up  with  that  remarkable  intel- 
ligence which  always  characterizes  the  "Force"  in  heavy 
cases  ;  and  losing  the  clue  for  a  moment  on  board  a  vessel 
which  was  outward  bound,  found  it  again  almost  imme- 
diately afterward  in  the  spot  where  they  had  missed  it. 
Instead,  however,  of  arresting  the  man  they  were  after, 
"from  information  received,"  they  pounced  upon  an  inof- 
fensive and  mild-looking  clergyman,  and  charged  him  with 
wilful  murder.  Witnesses  were  soon  obtained  (the  supply 
in  London  always  being  equal  to  the  demand,  whatever  may 
be  the  commodity  you  require),  who  saw  the  Rev.  gentle- 
man leave  the  brothel  where  the  deceased  woman  was  found 
immediately  after.  The  singular  part  of  the  story  was,  that 
he  so  exactly  corresponded  with  the  man  whom  they  did 
not  see  leave  the  house,  and  whom,  the  police  were  after  in 
the  first  instance,  and  when  they  boarded  the  vessel.  Of 
course,  it  was  of  the  utmost  imjjortance  that  this  gentleman 
should  not  be  committed  for  trial,  although  a  conviction 
would  have  been  utterly  impossible.  It  was  consequently 
necessary  to  cross-examine  the   witnesses  and  to  call  evi- 


134  HINTS  ON  ADVOCACY. 

deuce.  This  was  accordingly  done,  and  it  was  clearly  estab- 
lished that  the  reverend  prisoner  was  perfectly  innocent  of 
the  charge  ;  that  he  was  elsewhere  at  the  time  he  was  said 
to  have  been  in  the  street ;  and  that  there  was  no  single  cir- 
cumstance even  that  required  explanation. 

Many  cases  there  are  where  a  judicious  examination  in 
the  first  instance  before  the  magistrate  would  insure  the  dis- 
charge of  the  accused,  but  in  all  these  cases  an  advocate  of 
some  experience  should  be  retained.  It  may  be  taken  as  a 
good  rule,  that  where  a  case  is  going  for  trial,  no  defense 
should  be  raised.  It  should  be  carefully  watched,  and  a 
question  here  and  there  judiciously  interposed  where  some- 
thing is  certain  to  be  obtained  favorable  to  the  accused. 
Where  the  answer  is  doubtful,  it  should  never  be  risked. 
Severe  cross-examinations  and  magnificent  police-court 
speeches  can  only  be  useful  to  the  prosecution. 

If,  however,  the  case  of  the  accused  rests  upon  his  call- 
ing witnesses,  this  will  necessitate  their  being  before  the 
magistrate,  otherwise  it  will  operate  to  the  prejudice  of  the 
defense  at  the  trial.  The  prisoner,  moreover,  if  they  are 
"  bound  over,"  will  have  the  advantage  of  their  expenses 
being  provided  for,  if  the  judge  considers  their  evidence 
material  and  trustworthy. 

But  if  called,  it  is  only  necessary  to  give  the  outline  of 
their  evidence,  a  full  outline  it  may  be,  but  the  details 
should  be  judiciously  reserved.  It  is  a  good  plan  some- 
times to  have  witnesses  before  the  magistrate,  and  not  call 
them  if  you  can  avoid  it.  It  takes  the  sting  from  the  ques- 
tion, "  Were  you  before  the  magistrate?". or  "  When  were 
you  asked  to  give  evidence?"  This  is  very  often,  as 
Brougham  would  say,  "  expedient." 

§  110.  What  to  do  after  Bill  Found. — Let  it  now  be  as- 
sumed that  your  client  has  been  duly  committed  for  trial, 
and  that  a  "true  bill"  has  been  found  by  the  grand  jury. 
It  is  the  first  business  of  the  counsel  instructed  to  defend, 
to  see  what  charges  the  indictment  contains.  I  am  afraid 
this  duty  is  more  often  than  not  neglected  by  junior  barris- 


CONDUCT  OF  THE  TRIAL.  135 

ters,  and  the  consequence  sometimes  is  that  a  prisoner  is 
convicted  on  a  bad  indictment.  Jt  contains,  perhaps,  no  of- 
fense known  to  the  hiw,  or  it  contains  too  many  offenses  ; 
something  is  not  set  out  which  should  be,  or  there  may  be  a 
great  deal  too  much  set  out.  There  may  in  short  be  some 
*'ilaw,"  which,  if  taken  advantage  of  in  a  proper  manner, 
would  insure  the  acquittal  of  the  accused.  This  is  by  no 
moans  of  such  rare  occurrence,  notwithstanding  the  powers 
of  amendment  and  the  improved  method  of  pleading,  as  to 
make  it  a  matter  of  little  moment  to  examine  minutely  the 
indictment. 

Taking  for  granted  that  I  am  writing  now  to  advocates 
who  are  good  lawyers,  I  will  assume  that  having  carefully 
and  critically  perused  the  indictment,  you  know  exactly 
what  it  contains,  and  I  conclude  that  you  will  not  move 
without  strong  necessity  to  have  it  quashed —  (as  this  is  by 
no  means  a  safe  proceeding) — that  you  will  give  no  oppor- 
tunity of  amending,  where,  by  taking  objection  at  the 
proper  time,  you  will  compel  your  opponent  to  "  elect  "  as 
to  which  of  the  counts  he  will  proceed  upon  ;  and  that  you 
will  not  prematurely  take  an  objection,  where  you  should  re- 
serve your  attack  for  the  forlorn  hope  of  a  motion  in  arrest 
of  judgment. 

§  111.  Conduct  of  the  Trial. — These  points  having  been 
carefully  considered,  and  having  thoroughly  made  up  your 
mmd  as  to  what  the  defense  is  to  be,  remembering  always 
that  one  good  defense  is  better  than  two,  you  must  now 
watch  carefully  the  opening  of  the  case  for  the  prosecution. 
If  your  adversary  open  too  much,  it  will  be  a  point  in  your 
favor.  "A  guilty  man,"  says  Whately,  "may  often  es- 
cape " — (I  hope  not  often) — "  by  having  too  much  laid  to 
his  charge  ;  so  he  may  by  having  too  much  evidence  against 
him,  i.  e.,  some  that  is  not  itself  satisfactory;  thus  a  pris- 
oner may  sometimes  obtain  an  acquittal  by  showing  that  one 
of  the  witnesses  against  him  is  an  infamous  informer  and 
spy,  though  perhaps,  if  that  part  of  the  evidence  had  been 


13()  HINTS  OX  ADVOCACY. 

omitted,  the  rest  would  have  been  sufficient  for  conviction." 
— Elements  of  Logic^  B.  Ill,  §   18. 

Again,  if  3'our  opponent  inadvertently  open  a  case,  differ- 
ing materially  from  the  evidence  of  the  witnesses  or  any 
of  them,  it  will  be  matter  for  observation  which  will  not  be 
without  its  effect.  It  is  not  your  business  to  object ;  you 
do  not  know  what  he  can  i)rove,  and  if  his  proof  fall  short, 
so  much  the  better  for  your  client.  But  you  must  narrowly 
watch  and  object  if  counsel  for  the  prosecution  propose  to 
read  any  letter  or  document,  or  state  any  conversation 
which,  when  the  proper  time  comes,  may  not  be  admissible. 
It  is  useless  after  the  mischief  has  been  done,  and  the  im- 
pression made  on  the  minds  of  the  jury,  for  the  judge  to 
say :  "  I  shall  tell  the  jury  that  that  document  or  that  con- 
versation is  not  evidence,  and  that  they  are  to  dismiss  it 
froAi  their  minds."  They  cannot  dismiss  it  from  their 
minds,  and  it  is  evidence,  no  matter  whether  you  call  it  so 
or  not,  when  once  before  them,  and  will  in  all  human  prob- 
ability have  an  influence  on  their  judgment.  It  is  like  the 
village  lawyer  telling  the  man  that  they  could  not  put  him 
in  the  stocks;  the  irrefutable  answer  was:  "But  I  am 
here." 

You  must  further  take  care  that  if  you  succeed  in  shut- 
tino-  out  a  document,  vou  exclude  also  all  observations 
upon  it ;  for  nothing  is  more  unfair  than  to  allude  to  a  mat- 
ter which  is  not  in  evidence,  although  it  is  often  inadver- 
tently done. 

You  will  not  trouble  yourself  to  take  down  the  evidence, 
but  as  it  is  given,  follow  closely  the  deposition  which  the 
witness  has  made  before  the  magistrate — not  with  a  view  of 
verbal  criticism,  or  of  establishing  some  trivial  error  or  dis- 
crepancy ;  but  to  see  that  there  are  no  material  differences 
or  contradictions.  These,  if  there  be  any,  you  will  note  and 
call  attention  to  in  cross-examination.  Unless  you  do  this, 
you  will  not  be  able  to  bring  them  to  the  mind  of  the  invy. 
But  upon  this  subject  I  will  say  a  word  more  particularly 
hereafter,  as  the  mode  of  doing  it  is  a  matter  of  the  gi-eat- 


CONDUCT  OF  THE  TRIAL.  137 

est  importance.  With  a  wily  witness  the  contradictions  or 
variances  may  be  artfully  reconciled,  or  sufficiently  Sf>  to 
impose  upon  the  jury,  unless  great  care  is  used  in  dealing 
with  him.  Your  ol)jcct  is  not  to  reconcile  or  give  him  an 
opportunity  of  explaining,  ])ut  to  impress  the  difference  in 
the  statements  on  the  jury,  and  widen  the  gap  rather  than 
close  it. 

Besides  remarking  the  difference  between  the  testimony 
now  given  and  that  deposed  before  the  magistrate,  you  must 
be  equally  careful  to  note  the  points  of  difference  between 
the  witnesses  as  well  as  the  points  of  agreement.  For  ob- 
serve :  they  must  agree  u[)on  some  point  in  your  favor,  and 
disagree  as  to  something  which  is  against  you  ;  and  indeed, 
any  disagreement  may  be  turned  to  advantage.  With  a  lit- 
tle experience,  and  a  good  deal  of  observation,  you  vv^ill  be 
able  to  distinguish  between  those  matters  of  detail  which 
sometimes  betray  perjured  testimony,  and  details  which  are 
of  no  importance  whatever  ;  as  also  to  distinguish  l)ctwcen 
mere  inaccuracies  in  the  evidence,  arising  from  a  slovenly 
habit  of  thought,  and  inaccuracies  which  are  artfully  con- 
trived to  deceive. 

Inaccurate  witnesses,  when  properly  cross-examined,  will 
often  destroy  the  effect  of  the  most  accurate,  as  they  will 
raise  a  doubt  where  none  would  otherwise  exist.  Inaccura- 
cies, therefore,  as  to  date,  time,  place,  position  of  the  par- 
ties, what  was  said,  by  whom,  and  other  matters  of  a  like 
kind,  ought  not  to  be  overlooked,  due  regard  being  had  to 
what  was  before  observed  as  to  mere  discrepancies. 

While  you  exercise  the  utmost  vigilance  to  prevent  the 
admission  of  matter  which  is  not  in  evidence,  care  should  be 
taken  not  to  object  to  every  question  on  that  account,  or 
because  it  may  be  put  in  a  leading  form  or  in  a  form  that 
may  be  otherwise  objectionable.  Too  many  objections  have 
the  bad  effect  of  wasting  time  and  of  raising  an  unjust  sus- 
picion in  the  mind  of  the  jury. 

That  you  should  preserve  the  most  even  and  calm  de- 
meanor in  conducting  a  criminal  defense,  it  is  hardly  ncces- 


138  HINTS  ON  ADVOCACY. 

•sary  to  observe.  It  is,  indeed,  a  part,  and  no  unimportant 
part,  of  your  case.  Irritation  and  querulou.sncss  are  bad 
accompaniments  of  the  best  defense;  and  if  you  win,  it 
will  be  in  spite  of  them,  a)id  not  by  their  assistance. 

Let  the  worst  be  stated  against  you,  but  if  possible,  do 
not  let  the  worst  be  proved.  This  must  be  your  object  in 
following  closely  the  witnesses  for  the  prosecution. 

§  112.  Rules  for  Cross- Examination. —  In  cross-exami- 
nation, I  will  repeat,  the  utmost  care  should  be  exercised  ; 
otherwise  the  facts,  instead  of  being  toned  down,  will  stand 
out  the  more  clearly.  The  danger  is  so  great  to  the  unfor- 
tunate object  Avhose  fate  may  be  determined  by  an  injudi- 
cious question,  that  you  had  better  not  cross-examine  at  all, 
if  you  have  not  perfect  confidence  in  the  line  you  are 
taking,  and  that  the  answers  will  not  endanger  his  liberty 
or  life.     If  you  don't  know  what  to  ask,  ask  nothing. 

I  do  not  think  any  advocate,  however  clever  he  may  be, 
should  take  upon  himself  a  defense  of  any  importance  till 
he  has  had  some  experience.  No  man  without  it  can  cross- 
examine  unless  at  great  risk.  He  may  ask  questions  and 
get  answers,  but  he  will  be  a  wonderfully  fortunate  man  if 
he  do  not  inflict  more  damage  upon  his  client  than  upon 
the  witness.  It  has  often  occurred  that  after  a  spirited 
cross-examination  by  a  young  advocate,  he  has  made  the 
■  observation  :  "  I  think  I  have  settled  him,  haven't  I?  "  In 
the  civility  of  my  heart  I  have  answered:  "Yes,  /  think 
you  have.'"  At  the  same  time,  I  have  no  doubt  we  were 
speaking  of  two  very  different  persons,  he  referring  to  the 
witness,  and  I  thinking  of  his  client.  The  best  prc[)aration 
a  man  can  have  to  qualify  himself  to  cross-examine  is  to 
study  carefully  the  mode  in  which  the  best  men  proceed, 
and  to  acquire  a  knowledge  of  character,  of  human  nature, 
of  wdiat  is  called  "the  world.''  Oiie  man  may  have  a 
greater  aptitude  than  another,  but  with  the  most  gifted  it 
requires  years  of  training  and  observation  to  arrive  at  any- 
thing like  perfection.  With  the  ordinary  individual,  there- 
fore, too  much  study  cannot  be  given  to   acquiring  sound 


HULKS  FOR  CKOSS-EXAMINATION.  139 

knowledge  of  the  art.  While  your  cross-examination  is 
proceeding,  the  counsel  for  the  prosecution  will  watch  for 
supplemental  evidence,  or  for  an  opening  through  which  he 
may  drag  some  in.  Frequently,  he  would  have  few  mate- 
rials to  ask  a  verdict  upon  without  this  so-called  cross-ex- 
amination, and  that  being  so,  ask  as  little  as  you  possibly 
can.  If  yon  cannot  serve  your  client,  avoid  injuring  him. 
Of  course,  the  more  ability  you  possess,  and  the  more 
knowledge  you  acquire,  the  more  you  will  be  able  to  accom- 
plish with  the  fewest  questions. 

At  the  commencement,  it  is  a  good  plan  to  throw  out  one 
or  two  trifling  and  harmless  questions,  in  order  to  ascertain 
the  temper  and  feeling  of  the  witness.  It  will  tend  also  to 
put  him  on  good  terms  with  you,  if  there  be  a  necessity  for 
it.  He  may  have  been  brought  into  court  against  his  will 
and  obliged  to  say  what  he  has  said  ;  but  with  a  little  en- 
couragement and  a  little  gentle  leading,  he  will  probably 
follow  you  with  the  docility  of  a  friendly  witness.  He  may 
know  a  great  deal  more  than  he  has  said,  and  what  he  knows 
may  throw  much  light  on  what  has  gone  before.  He  may 
be  a  well-disposed  witness  after  all,  and  likely  enough  will 
give  a  different  color  to  the  case.  You  know  how  greatly 
a  coat  of  coloring  changes  the  appearance  of  a  bare  wall,  so 
it  does  the  aspect  of  a  bare  fact.  But  if  you  commence  by 
trcating  this  witness  in  a  hostile  spirit,  as  though  being  a 
witness  for  the  prosecutu)n,  he  must  necessarily  be  adverse 
in  feeling  to  the  prisoner,  you  may  lose  the  benefit  of  all 
the  kind  things  he  may  say  in  your  behalf. 

If  on  the  other  hand  you  perceive  that  a  witness  has  a 
strong  feeling  in  the  matter,  the  less  you  have  to  do  with 
him,  the  better.  He  will  drive  every  nail  home  which  the 
prosecution  may  not  have  struck  forcibly  enough.  Ask  him 
one  question,  he  will  answer  as  if  you  had  asked  him  half- 
a-dozen,  and  every  answer  will  be  unfavorable.  You  might 
as  well  butt  the  witness-box  Avith  your  head  with  a  view  to 
making  evidence  (and  better  for  your  client's  sake),  as  ques- 
tion a  witness  of  this  kind.     If  you  should  get  anything 


140  HINTS  ON  ADVOCACY. 

favorable,  it  will  be  by  accident,  and  because  he  does  not 
perceive  the  drift  of  your  question.  p]verything  you  ask 
gives  him  the  opportunity  for  a  speech  against  the  prisoner. 
If  you  can  show  his  strong  feeling  by  a  well  conceived  ques- 
tion, it  is  all  that  you  ought  to  attempt  with  a  witness  of 
this  kind,  unless,  indeed,  you  can  convict  him  of  an  untruth. 
These  are  your  only  chances  Avitli  him. 

But  many  hostile  witnesses  may  be  treated  in  a  different 
manner  according  to  their  degrees  of  hostility  and  their 
temperament.  You  may  sometimes  destroy  the  effect  of 
the  evidence  of  an  adverse  witness  b}^  making  him  appear 
more  hostile  still.  You  may  make  him  exaggerate  or  un- 
say something,  and  say  it  again.  If  you  can  not  pull  him 
off  his  high  horse  on  one  side,  you  may  perhaps  push  him 
over  on  the  other,  and  so  long  as  you  get  him  off,  it  does 
not  much  matter  on  which  side  you  land  him.  Perhaps  he 
will  show  himself  spiteful,  and  lose  his  temper  at  the  same 
time  ;  if  so,  it  will  be  in  your  favor,  for  juries  dislike  above 
all  things  to  see  spite  in  the  witness-box.  Every  question 
must  be  asked  with  a  view  to  the  theory  of  the  defense. 
Mere  contradictions  will  not  serve,  unless  you  can  show  that 
they  are  in  opposition  to  the  probabilities  of  your  case. 

§  113.  Cross-Examining  the  Police.  —  I  purposely  re- 
served the  consideration  of  the  cross-examination  of  an 
important  class  of  witnesses  fortius  place,  because  it  seemed 
to  belong  more  particularly  to  this  branch  of  advocacy.  I 
refer  to  the  police.  Every  one  who  conducts  a  defense  in  a 
criminal  trial  has  to  deal  with  police  testimony,  and  as  a 
class  of  evidence  it  figures  more  conspicuously  in  criminal 
courts  than  an}^  other.  Again,  I  shall  commence  by  saying, 
as  far  as  possible  leave  them  alone.  They  are  dangerous 
persons.  They  are  professional  witnesses,  and  in  a  sense 
that  no  other  class  of  witnesses  can  be  said  to  be.  Their 
answers  generally  may  be  said  to  be  stereotyped.  All  the 
ordinary  questions  may  be  answered  scores  of  times  by  the 
well   disciplined,    "  active    and    intelligent    officer."       He 


CROSS-EXAMINING  THE  POLICE.  141 

knows  what  you  will  iisk  liini  next,  if  you  arc  no  better  than 
the  rank  and  file  of  cross-examiners. 

But  try  him  with  something  just  a  little  out  of  the  com- 
mon line  by  way  of  experiment.  You  see  he  looks  at  you, 
as  though  he  had  got  the  sun  in  his  eyes.  He  can  not  quite 
see  what  you  are  about.  And  you  must  keep  him  with  the 
sun  in  his  eyes,  if  you  desire  to  make  anything  of  him. 

To  be  effective  with  a  policeman,  your  questions  must  be 
rapidly  put.  Although  he  has  a  trained  mind  for  the  wit- 
ness-box, it  is  trained  in  a  very  narrow  groove  ;  it  moves  as 
he  himself  moves,  slowly  and  ponderously  along  its  particu- 
lar beat ;  it  travels  slowly  because  of  its  discipline,  and  is 
by  no  means  able  to  keep  pace  with  yours,  or  ought  not  to 
be.  You  should  not  permit  him  to  trace  the  connection  be- 
tween one  question  and  another,  when  you  desire  that  he 
should  not  do  so.  If  you  ask  him  whether  it  was  a  very 
dark  night,  and  the  darkness  has  nothing  whatever  to  do 
with  the  issue,  he  will  commence  a  process  of  reasoning  as 
to  your  motive,  and  what  might  possibly  be  the' effect  of 
his  answer.  While  this  mental  exertion  is  going  on,  inter- 
rupt him  suddenly  with  a  question  you  have  a  good  reason 
for  putting,  and  in  all  probability  you  will  get  something 
near  the  answer  you  require. 

Policemen  have  a  great  deal  of  knowledge  about  the  case, 
and  a  great  deal  of  belief.  The  former  you]will  find  bad 
enough  to  deal  with,  but  3^ou  must  be  careful  not  to  elicit 
a  large  quantity  of  the  latter ;  if  yon  do,  you  may  rest  as- 
sured it  will  look  so  like  a  fact,  that  it  will  pass  with  tlie 
jury  as  such.  You  will  be  fortunate  if  it  do  not  condense 
itself  into  a  fact  by  the  time  you  get  it. 

"What  did  you  say  when  you  apprehended  the  prisoner?" 
asked  Jones,  eager  for  the  display  of  his  severe  ability  in 
cross-examination.  "  Oh  !  "  said  the  active  and  intelligent, 
*'  I  forgot  that,  my  lord  " — (always  taking  my  lord  into  his 
confidence).  "  I  beg  your  lordship's  pardon.  I  said,  now 
Sykes,  when  you  come  out  from  doin'  the  last  seven  year, 
you  told  me  you  meant  to  turn  over  a  new  leaf,  and  'ere 
you  are  agin."     And  there  the  counsel  was  again ! 


142  HINTS  ON  ADVOCACY. 

Unless  you  are  certain  of  the  answer,  never  under  any 
circumstances  ask  a  policeman  as  to  character.  Your  client 
may  have  the  best,  but  policemen  have  such  a  high  standard 
that  no  man  in  the  dock  can  ever  come  up  to  it.  The  highest 
character  he  can  give  a  respectable  man  will  be,  that  be 
"does  not  know  anything  against  him."  I  have  often 
heard  them  reprimanded  for  this  answer  by  the  judges,  and 
asked  if  they  know  anything  in  his  favor.  So  if  a  man  said 
something  while  tipsy,  and  a  policeman  be  asked  :  "  He  was 
very  drunk,  wasn't  he?"  the  answer  will  be  :  "  He  knowed 
what  he  was  about,  sir." 

Furthermore,  it  is  dangerous  to  put  "  fishing"  questions 
to  this  class  of  witness.  You  are  almost  sure  to  catch  the 
wrong  answer.  Your  safer  course  will  be  to  cross-examine 
for  contradictions  and  improbabilities,  and  also  where  it  is 
necessary  to  give  the  witness  the  opportunity  of  denying 
anything  upon  which  you  intend  to  contradict  him.  Cross- 
examine  for  prejudices  and  as  to  opportunities,  remember- 
ing always  that  there  is  often  as  much  in  the  manner  as  in 
the  matter  of  cross-examination,  and  much  more  at  times  in 
silence  than  in  both.  The  policeman  is  not  below  human 
nature  generally.  The  parent  of  many  of  his  faults  is  the 
fact  that  police  magistrates,  as  a  rule,  think  he  must  be  pro- 
tected by  an  hnpUcit  belief  in  his  veracity.  As  a  natural 
consequence,  he  falls  into  the  error  of  believing  in  his  own 
infallihility. 

§  114.  When  to  Call  Witnesses. — Having  completed  your 
dut}'  in  this  respect,  you  will  not  be  indiscreet  enough  to 
"  sul)mit  to  the  court  there  is  no  evidence  to  go  to  the  jurj'" 
if  there  be  some  ;  but  will  consider  whether  you  will  call 
witnesses,  if  you  have  not  made  up  your  mind  at  an  earlier 
stage  of  the  case.  If  the  evidence  against  you  be  weak, 
and  your  own  not  strong,  you  ought  not  to  call  any.  By 
doing  so,  you  will  lose  the  last  word,  and  what  is  perhaps  of 
far  greater  importance,  run  the  risk  of  strengthening  the 
case  against  you  on  the  cross-examination  by  the  counsel  for 
the  prosecution.  This  has  often  been  done  to  the  ruin  of 
the  accused. 


TIIK  SPEECH  FOR  THE  DEFENSE.  143 

If  ill  length  you  find  that  you  ought  to  cull  witnesse.s, 
avoid  calling  too  many:  or  rather,  I  should  say,  too  many 
to  the  same  subject-matter.  One  good  witness  is  worth  a 
dozen  inilift'erent  ones,  and  it  is  much  more  easy  to  get  con- 
tradictions from  a  dozen  than  from  two  or  three  ;  you  always 
run  the  risk  of  witnesses  contradicting  one  another,  however 
truthful  thc}^  may  be.  Remember,  too,  that  a  contradiction 
in  your  witnesses  will  be  a  much  more  serious  affair  than  a 
contradiction  among  those  of  the  other  side  ;  for  though  the 
law  presumes  every  man  innocent  until  he  be  proved  guilty, 
the  jury  presume  every  man  on  his  trial  to  be  guilty  until 
the  evidence  fails  to  convince  them.  They  will  look  in  most 
cases  with  some  suspicion  upon  the  evidence  for  the  defense, 
and  every  weak  point  in  it  will  be  magnified  accordingly. 
In  most  cases,  the  witnesses  for  a  prisoner  either  save  or 
convict  him.  If  they  are  good  Avitnesses  and  honest,  they 
are  of  inestimable  importance  ;  but  if  they  are  shady,  they 
will  almost  always  be  shaky,  and  infinitely  worse  than  none 
at  all. 

§  115.  Tlte  Speech  for  the  Defense. —  But  whether  you 
call  them  or  not,  you  will  at  last  come  to  that  very  import- 
ant part  of  your  duty,  namely,  your  speech  on  behalf  of 
vour  client.  How  to  speak  it  is  not  within  the  province  of 
this  Avork  to  teach,  even  if  I  were  equal  to  the  task.  But  I 
will  assume  that  you  have  made  that  branch  of  advocacy 
your  careful  and  assiduous  study  ;  that  you  have  attended 
debating  societies,  have  spoken  at  public  meetings,  at  the 
sea-side,  and  in  your  private  room  ;  that  you  have  practised 
the  art  with  all  the  enthusiasm  of  one  desirous  of  becoming 
eminent  in  your  profession  ;  and  with  all  the  care  that  you 
could  possibly  bestow  upon  its  cultivation  ;  that  you  have, 
in  short,  done  all  in  your  power  to  make  yourself  efficient  in 
this  fascinating  branch  of  your  professional  duties. 

You  will  now  in  the  pleasantest  manner,  but  with  due 
gravity,  commence  your  defense,  and  if  the  accused  be  a 
person  of  character,  especially  if  he  occupy  any  position  in 
the  social  scale,  you    will    do  so  b}'  bringing    these   facta- 


144  HINTS  OX  ADVOCACY. 

prominently  before  the  jury.  Nothing  is  more  calcuhited  to 
engage  their  attention  and  enlist  their  sympathies  than  this, 
besides  which  you  excite  as  well  as  gratify  their  curiosity. 
This  feeling  is  akin  to  surprise,  and  nothing  takes  a  firmer 
bold  of  the  attention.  At  the  same  time  you  will  almost 
have  excited  the  hopes  of  the  jury  on  behalf  of  the  accused. 
The  prosecutor  Avill  have  passed  from  their  minds,  and  a  new 
object  presented  itself,  namely,  that  of  a  respectable,  well- 
educated  man  in  the  dock.  Imagination  deepens  the  dis- 
grace, and  awakens  still  tenderer  sympathies  on  his  behalf. 
They  are  sure  to  think,  without  any  reminder  on  your  part, 
of  those  belonging  to  him,  and  of  the  hearts  that  beat  in 
unison  Avith  his  own.  This  is  a  part  which  should  not  be 
hurried,  for  you  want  to  give  the  feelings  time  to  play. 
Now  brimr  forward  the  charge  ;  if  it  be  one  of  enormous 
guilt,  or  of  a  mean  despicable  kind,  or  one  revolting  to  hu- 
manity, what  a  contrast  is  produced  betw^een  the  character 
and  the  crime  !  There  is  an  inherent  improbability  against 
such  a  man  committing  such  an  offense  !  That  is  a  good 
contrast  to  start  with. 

And,  here  again,  be  careful  not  to  hurry  the  jury  away 
from  so  good  a  situation  in  the  drama.  If  you  have  per- 
formed this  part  of  3'our  defense  with  art  and  skill,  you 
have  already  prepared  the  mind  for  the  impressions  that  are 
to  come.  A  little  lingering  round  the  scene,  without  too 
nmch  to  say,  only  to  give  time  before  you  address  yourself 
to  argument,  will  be  beneficial.  Let  them  just  have  time 
to  contemplate  the  scene,  and  take  in  its  misery.  Connected 
with  the  improbabilities  will  be,  possibly,  absence  of  motive. 
If  so,  the  sul)ject  comes  in  naturally  at  this  point.  If  a 
motive  have  been  suggested,  it  must  be  grappled  with,  and 
should  be  as  soon  as  possible  ;  if  not,  it  is  a  happy  circum- 
stance to  be  commented  upon  briefly,  but  with  fervor.  The 
jur}',  you  will  find,  are  following  you  sentence  by  sentence, 
and  word  for  word  ;  and  the  stronger  3^our  arguments,  the 
more  intently  they  listen.  If  now  you  point  out  how  they 
may  acquit  consistently  with  their  oaths,  they  will  feel  in- 


THE  SPEECH  FOR  THE  DEFENSE.  l45 

cliiied  to  do  so.  If  you  can  explain  away  satisfactorily  one 
or  two  awkward  points  in  the  evidence,  the  verdict  will  be 
yours.  It  has  reduced  itself  to  this  already.  Without  the 
employment  of  any  clap-trap  you  have  gone  a  long  way  on 
your  road.  You  have  reached  the  feelings  of  the  jury,  and 
they  wish  to  acquit. 

Now  it  is  your  duty  to  show  how  it  can  be  done.  Bring 
up  the  evidence  for  the  prosecution,  not  like  a  tender  deli- 
cate creature,  to  be  nurtured  as  it  were  by  the  counsel  on  the 
other  side,  ])ut  like  a  hideous  thing  to  l>e  looked  at  and  put 
away  out  of  sight.  What  is  this  evidence?  Can  you  pro- 
ceed to  show  that  it  is  not  consistent  as  a  truthful  story 
should  be,  but  a  patchwork  performance  of  many  pieces  and 
many  colors,  a  thing  of  no  pattern?  Jf  so,  it  begins  to  lose 
its  hold  upon  the  jury ;  the  improbabilities  thicken  and 
strengthen  ;  there  is  increasing  sympathy  for  the  accused,  as 
each  juryman  begins  to  think  he  may  be  the  victim  of  a 
terrible  mistake,  or  worse,  of  a  horrible  conspiracy  !  En- 
courage that  feeling,  not  by  saying  that  it  is  so,  but  by  lead- 
ing their  minds  to  form  the  conclusion  for  themselves. 
Surely  such  a  charge  should,  if  made,  be  supported  by  con- 
clusive and  unimpeachable  evidence,  not  such  as  is  open  to 
the  observations  you  are  making ;  not  by  evidence  every 
part  of  which  seems  to  be  giving  way  under  examination. 
And  can  you  not  point  out  how  a  man  with  an  estimable 
character  should  not  be  dcstroj^ed  by  witnesses  without  any 
character  at  all  ?  If  there  be  one  such  among  the  witnesses 
for  the  prosecution,  it  will  answer  your  purpose.  It  maybe 
the  prosecutor  is  a  rapacious  money-lender  and  the  accused 
a  man  who  borrows.  The  prosecutor  may  be  a  wrecker  of 
homes,  and  the  prisoner  a  man  whose  home  is  wrecked,  and 
who  is  prosecuted  for  obtaining  money  by  some  false  pre- 
tense upon  a  bill  of  sale.  Accuser  and  accused  may  thus 
be  brought  into  contrast,  until  at  last  the  one  will  be  looked 
upon  with  compassion  and  the  other  with  contempt. 

Perhaps  you  Avill  discover  some  motive  for  the  prosecu- 
i  on  apart  from  the  divine  "interests  of  justice;"  if  so, 
that  is  a  kind  of  torpedo  which,    when  you  explode,   will 

(lo: 


146  HINTS  ON  ADVOCACY. 

blow  the  honest  prosecutor  out  of  the  water.  Having 
reached  this  point,  now  will  be  the  time  for  a  display  of 
your  powers  of  declamation.  So  you  may  prepare  to  use 
them  without  delay,  for  you  have  Innocence  in  the  dock  and 
Guilt  in  the  witness-box  !  Such  at  least  in  the  eyes  of  the 
jury  is  the  last  situation  of  the  drama.  And  here  you  may 
resume  3'^our  seat,  while  I  drop  the  curtain. 

§  116.  Conclusion.  —  If  you  have  called  witnesses,  of 
course,  your  obvious  duty  will  be  to  point  out  the  contrast 
between  their  evidence  and  that  of  the  witnesses  for  the 
prosecution,  as  well  as  the  fact  of  its  being  more  compati- 
ble with  the  character  of  the  accused.  You  will  perceive 
that  character  stands  prominently  forward  again  and  again 
without  any  ostentatious  display.  It  should  not  be  used 
as  though  in  so  many  words  you  asked  the  jury  to  acquit 
because  the  prisoner  bore  a  good  character  ;  it  is  of  great 
weight,  where  probabilities  are  balanced  and  circumstances 
are  dou])tf ul — where  they  may  receive  a  construction  either 
favoruljle  or  unfavorable  to  the  person  charged.  It  should 
play  its  part  like  the  principal  character  in  a  drama,  appear- 
ing always  at  the  right  time  and  in  the  appropriate  scene. 
It  is  the  one  thing  that  has  saved  many  a  rogue  from  his 
well-deserved  doom,  but  it  has  also  saved  many  an  honest 
man,  unjustly  charged,  from  ruin.  It  has  preserved  many  a 
family  from  misery  and  degradation.  If  you  have  this  ally, 
the  enemy  must  be  strong  who  defeats  you.  Of  course, 
there  are  cases  where  character  does  not  come  in  ;  but  there 
arc  so  many  where  it  does,  that  it  cannot  be  out  of  place  to 
insist  upon  it,  as  though  there  were  hardly  an  exception. 

I  do  not  for  a  moment  imply  that  facts  go  for  little,  where 
the  sympathies  of  a  jury  are  strongly  roused  in  a  prisoner's 
behalf.  It  is  the  view  they  are  induced  to  take  of  the  evi- 
dence through  the  medium  of  character,  after  balancing 
the  probabilities,  that  makes  character  of  such  inestimable 
value.  To  rouse  the  feelings  without  laying  hold  of  the 
iudiiment  would  be  idle.  You  might  obtain  a  recommenda- 
tion  to  mercy,  but  you  would  scarcely  ever  get  a  verdict  of 
acquittal. 


OLD  PREJUDICES. 


147 


CHAPTER  X. — The  Ethics  of  Advocacy. 


SECTION. 

117.  Old  Prejudices. 

118.  The  Clmrgo.s  Stated. 

119.  Doctrine  of  tlie  Casuists. 

120.  The  otiier  Side. 

121.  ''Bad  Causes."' 

122.  .Justice  and  Law. 

123.  Hard  Cases. 


SECTION. 

124.  Fraudulent  Devices. 

125.  About  False  Asseverations. 

126.  Brougham  and  Dr.  Paley. 

127.  Tlie  Courvoisier  Case. 

128.  Its  Moral. 

129.  .Judicial  Rebuke. 

i;30.  The  Sum  of  the  Matter. 


"  I  hold  every  man  a  debtor  to  his  profession,"  says 
Lord  Bacon,  "  from  the  which  as  men  of  course  do  seek  to 
receive  countenance  and  profit,  so  ought  they  of  duty  to  en- 
deavor themselves,  by  way  of  amends,  to  be  a  help  and 
ornament  thereunto . ' ' 

§  117.  Old  Prejudices. — A  popular  opinion  exists  that 
the  legal  profession  does  not  live  up  to  this  high  standard 
of  duty.  The  prejudice  is  of  very  respectable  antiquity. 
For  many  generations  the  venal  and  unscrupulous  advocate, 
and  the  knavish  attorney,  have  been  stock  characters  in  that 
cheap  satire,  which,  in  default  of  originality,  contents  itself 
with  iteration,  and  repeats  to  the  sons  the  venerable  jibes 
which  have  grown  stale  in  the  ears  of  their  fathers.  From 
the  earliest  English  plays,  down  to  Mark  Meddle,  in  Lon- 
don Assurance,  with  his  ^^damages  enormons,"  in  broad 
farce  and  un-genteel  comedy,  there  has  been  run  through 
literature  a  succession  of  "  limbs  of  the  law,"  portrayed  in 
colors  not  unworthy  of  "limbs  of  Satan,"  all  as  like  to 
each  other  and  with  as  little  variation  in  their  characteris- 
tics, as  there  is  in  the  time-honored  facetice  of  the  circus 
clown. 


148  HINTS  ON  ADVOCACY. 

A  strong  popular  <)i)iiiioii  is  usually  founded  on  a  modi- 
cum of  fact.  It  is  certainly  true  that  in  the  "  good  old 
times  '*  in  England,  there  prevailed  among  the  lower  grades 
of  legal  practitioners  a  laxity  of  morals,  which  justified  the 
unfavorable  views  taken  of  the  character  of  the  profession. 
Although  it  no  longer  deserves  the  obloquy  cast  upon  it  by 
the  misdeeds  of  these  members  long  since  dead  and  forgot- 
ten, still  "  the  evil  that  men  do  lives  after  them,"  and  the 
sharp  practice  of  mediaeval  attorneys  yet  stands  to  the  dis- 
credit of  their  successors. 

§  118.  Tlie  Charges  Stated. —  Unfavorable  opinions  of 
the  moral  character  of  lawyers  are  not  confined  to  the  igno- 
rant. Many  highly  intelligent  men,  have  held,  and  some 
still  hold,  that  several  practices  usual  at  the  Bar  are  contrary 
to  good  conscience.  Pretermitting  the  stock  charges  of 
cheating  and  extortion  against  attorneys  in  England,  which 
have  no  semblance  of  counterpart  in  American  practice,  the 
allegations  agamst  lawyers  are  :  First,  that  advocates  offend 
habitually  against  the  higher  law  in  undertaking  causes 
which  they  hnoiv  to  be  unjust ;  second,  that  in  their  ad- 
dresses to  juries  they  make  solemn  personal  asseverations 
of  the  justice  of  their  client's  cause,  and  by  skilful  dissimu- 
lation strive  to  persuade  all  men  that  they  sincerely  believe 
statements  which  they  do  not  believe. 

§  119.  Doctrine  of  the  Casuists. —  The  authorities  for 
the  first  of  these  charges  are  very  respectable  in  point  of 
antiquity  and  otherwise.  Thomas  Aquinas  holds  in  general 
terms  that  it  is  unlawful,  morally,  for  a  man  to  co-operate 
with  another  in  doing  that  which  is  wrong ;  and  especially 
that  an  advocate,  who  l)y  his  skill  and  experience  enables  a 
suitor  to  obtain  an  unjust  judgment,  offends  in  like  manner 
and  equal  degree  with  the  suitor  himself.  Other  casuists — 
Ames,  Morena,  etc. — support  the  same  vie\y,  and  Feltham, 
in  his  "Resolves,"  holds  like  language.  Later  moralists 
put  the  question  on  the  simple  ground  that  the  advocate  is 
the  agent  of  his  client  ;  that  if  the  advantage  gained  is 
against  good  conscience,  the   client   could  not  rightly  and 


THE  OTHER  SIDE.  149 

honestly  obtain  it  for  himself,  and  therefore  his  agent  can 
not  do  so  for  him,  because  the  stream  can  rise  no  higher 
than  the  fountain.  They  deny  the  assertion  of  Erskine, 
and  other  eminent  hiwyers,  that  an  advocate,  being  an  officer 
of  the  court,  cannot  refuse  his  services  to  any  one  who  will 
pay  the  usual  fees  for  them.  Their  conclusion  is  that  the 
lawyer's  duty  is  in  effect  to  try  every  case  before  he  agrees 
to  undertake  it,  and  refuse  it  utterly,  unless  he  is  satisfied 
that  his  would-be  client  is  certainly  in  good  conscience,  and 
probabl}'^  in  law,  entitled  to  a  judgment.  Mr.  David  Hoff- 
man, author  of  several  valuable  professional  works,  takes  a 
similar  view,  going  more  into  detail.  He  says  that  in  a 
case  which  in  his  opinion  he  ought  not  to  gain,  he  would 
never  lend  himself  to  an  extorted  compromise  by  which  his 
client  would  get  something,  when  in  justice  he  should  get 
nothing ;  that  he  would  never  take  advantage  of  purely 
technical  defenses,  plead  the  statute  of  limitations  based  on 
the  mere  efflux  of  time,  or  set  up  the  defense  of  infancy 
against  an  honest  demand,  if  his  client  were  able  to  pay. 

§  120.  The  Other  Side. — On  the  other  hand,  many  emi- 
nent writers  hold  a  much  less  rigid  view  of  professional 
duty.  Erskine,  in  his  defense  of  Tom  Paine,  takes  a  very 
decided  position.  He  says:  "If  the  advocate  refuses  to 
defend  from  Avhat  he  thinks  of  the  charge  or  the  defense, 
he  assumes  the  character  of  the  judge  ;  nay,  he  assumes  it 
before  the  hour  of  judgment,  and  puts  the  heavy  influence 
of  perhaps  a  mistaken  opinion  into  the  scale  against  the  ac- 
cused, in  whose  favor  the  benevolent  principles  of  the  Eng- 
lish law  make  all  presumptions,  and  even  compel  the  judge 
himself  to  be  his  counsel."  This  was  a  case  of  criminal  law, 
but  upon  the  leading  princii^les  of  the  rigid  moralists  here- 
tofore cited,  it  must  abide  a  like  decision  with  civil  cases. 
That  principle  is,  that  the  advocate  is  himself  the  judge  of 
the  justice  of  the  cause  offered.  If  it  be  righteous,  he  must 
take  it.  If  not,  he  must  refuse,  and  there  is  no  reason  why 
it  should  be  more  venial  for  him  to  aid  a  malefactor  to  escape 
punishment  which  he  has  deserved,  than  to  secure  money  to 


150  HINTS  ON  ADVOCACY. 

a  client  to  which  he  is  not  entitled.  Most  people,  however, 
take  a  much  more  reasonable  view,  and  make  a  distinction 
between  cases  in  which  a  man  is  ti<>:htin<;  for  his  life  or  lib- 
erty,  and  those  which  involve  only  a  sum  of  money.  In 
most  of  our  States,  the  law  in  its  tenderness  for  persons  ac- 
cused of  crime,  compels  counsel  to  render  their  services  to 
such  defendants  as  may  be  too  poor  to  pay  the  customary 
fees. 

§  121.  Bad^Causes. — On  the  subject  of  what  are 
called  "  bad  causes,"  Dr.  Johnson's  authority  is  sometimes 
cited,  but  his  opinion  is  (for  him)  singularly  weak  and  in- 
conclusive. He  was  asked  by  Bo.swell :  "What  do  you 
think  of  supporting  a  cause  which  you  know  to  be  bad?" 
"Sir,"  replied  the  sage,  "you  do  not  know  it  to  be  bad 
till  the  judge  determines  it.  *  *  *  You  are  to  state 
the  facts  fairly  ;  but  an  argument  which  does  not  convince 
you,  may  convince  the  judge  ;  *  *  *  then  you  are  wrong, 
and  he  is  right."  This  is,  under  deep  submission,  very 
nearly  nonsense.  If  the  cause  is  "  bad  "  in  morals,  the  so- 
lution slips,  like  an  ill-dealt  card,  underneath  the  table,  for 
the  judge  does  not  decide  causes  in  that  sense  at  all.  He 
decides /«i^,  not  morals.  If  the  cause  is  "bad"  in  law, 
Dr.  Johnson's  rule  of  practice  is  distinctly  immoral,  and  is  so 
held  by  every  practitioner  above  the  grade  of  pettifogger  or 
shyster.  "When  a  lawyer  thinks  his  client's  case  is  bad  in 
law,  his  duty  is  very  clear,  fully  understood,  and  daily 
acted  on  in  the  profession.  Simply  tell  him  that  you  think 
the  law  is  against  him.  If  he  accepts  your  opinion,  that 
ends  the  matter.  If  he  persists,  and  craves  the  luxury  of 
a  lawsuit,  indulge  him  by  all  means,  and  you  can  pocket 
your  fee  with  a  clear  conscience. 

As  to  the  duty  of  an  advocate  with  reference  to  causes 
morally  "  bad,"  it  may  be  premised  that  in  civil  prac- 
tice there  is  no  duty  incumbent  upon  him  to  appear  in 
any  case  which  he  may  choose  to  decline.  He  must  ap- 
pear, it  is  true,  for  the  poor  in  criminal  cases,  if  assigned 
to    that   dutv    l>v    the    court.       Beyond    this,  there   is    no 


JUSTICE  AND  LAW. 


151 


law,  moral  or  civil,  that  restricts  his  free  agency.  He  is  not 
a  common  carrier,  bound  to  fetch  and  carry  for  every  comer, 
nor  yet  a  scapegoat  to  bear  into  the  wilderness  the  sins  and 
follies  of  indefinite  and  miscellaneous  clients.  If,  therefore, 
he  appears  as  the  champion  of  fraud,  iniquity,  or  oppres- 
sion, he  can  plead  no  professional  duress.  He  is  no  more 
bound  t®  do  a  mean  or  wicked  thing  than  any  body  else, 
and  is  as  much  amenable  to  the  moral  law  as  unprofessional 
people.  So  far,  therefore,  as  concerns  "  bad  causes,"  he  is 
to  be  judged  by  the  same  standard  as  other  persons  acting 
as  agents  or  under  delegated  authority.  The  practical  diffi- 
culty in  this  matter  is,  that  it  is  often  almost  impossible  to 
say  what  is  the  real  character  of  a  cause,  until  it  has  nearly 
run  its  course.  Lawsuits,  in  this  respect,  have  no  ear- 
marks. Under  the  English  system,  the  barrister  derives  all 
his  information  as  to  the  facts  from  the  brief  prepared  by 
the  attorney.  Here  he  confers  directly  with  the  client,  who 
is  very  seldom  frank,  and  rarely  discloses  moral  obliquities. 
A  client  is  sometimes  as  hard  to  get  the  truth  out  of,  as  the 
most  recalcitrant  witness  ;  there  is  always  an  arriere  pensee 
of  unfavorable  facts  held  back,  because  of  the  silly  hope 
that  if  he  says  nothing  about  them,  even  to  his  own  counsel, 
nobody  else  will.  This  ostrich  policy  is  not  over- wise,  but 
clients  are  not  necessarily  wise  —  indeed,  some  people  think 
the  fact  that  they  are  clients  at  all  is  a  strong  presumption 
against  their  wisdom.  In  a  very  large  proportion  of  cases, 
therefore,  the  moral  character,  so  to  speak,  of  a  lawsuit  is 
not  developed  until  after  it  has  made  considerable  progress  ; 
certainly  not  until  after  counsel  has  been  retained  on  both 
sides. 

§  122.  Justice  and  Law. —  Natural  justice  and  positive 
law  are  so  intermingled,  that  it  often  becomes  difficult  to  de- 
cide which  controls  the  point  in  question.  This  case  may  be 
cited :  A.  made  his  will,  disinheriting  his  heir,  a  collateral 
relation.  The  will  is  found  to  be,  by  a  pure  technicality, 
defective  in  execution  and  invalid.  It  is  held  by  some  mor- 
alists that  as  A.  owned  the  property,  had  a  right  to  do  as  he 


152  HINTS  ON  ADVOCACY. 

pleased  with  his  own,  intcMided  the  devisee  to  have  it,  tried 
to  give  it  to  him,  and  failed  only  by  a  mistake,  it  was  im- 
moral and  wrong  for  the  heir,  being  only  a  collateral  rela- 
tion, and  having  no  claim  upon  the  bounty  of  the  deceased, 
to  take  advantage  of  the  imperfection  of  the  will,  and  claim 
the  estate  hy  descent.  Now,  this  is  a  case  into  which  nei- 
ther morality  nor  natural  justice  enter  in  the  slightest 
degree.  It  is  a  matter  of  pure,  absolute,  positive  law.  A.'s 
right  to  make  a  will  at  all  is  the  creation  of  positive  law, 
which  annexed  to  the  exercise  of  the  ri^ht  certain  condi- 
tions,  one  of  which  he  failed  to  observe.  The  same  positive 
law  empowers  the  heir  to  take  the  estate  by  descent,  if  A. 
shall  fail  to  make  a  valid  will,  and  his  right  to  inherit  is  of 
as  high  a  dignity  as  A.'s  right  to  devise.  There  is  not  a 
sdntiJJa  of  moral  right  or  justice  in  this  case  on  either  side. 
The  heir  had  no  claim  upon  A.  for  the  propert}'^  at  his  death  ; 
A.  had  no  correlative  right  to  demand  of  the  heir  obedience, 
or  duty,  or  regard  for  his  wishes. 

§  123.  Hard  Cases. —  It  will  be  found  that  many  of  the 
so-called  bad  causes  are  of  this  character,  and  a  large  ma- 
jority of  them  are  of  a  class  which  might  be  described  as 
cases  hard  —  huf  fair. 

A  case  of  hardship  that  does  not  fall  within  one  or  the 
other  of  these  categories  may  be  mentioned :  A  man  in  a 
Southern  State  executed  his  will  some  years  before  the  civil 
war.  He  devised  his  land  to  his  sons,  and  bequeathed  his 
slaves  to  his  daughters.  The  will  evidently  contemplated 
equality  among  his  children,  for  their  respective  shares  of 
his  estate  were  about  equal  in  value  at  the  date  of  the  will. 
During  his  lifetime  the  slaves  were  emancip.^ted,  but  from 
procrastination  and  iml)ccility,  the  will  remained  unaltered, 
and  upon  his  death  his  sons  received  his  whole  estate,  and 
his  daughters  received  —  nothing. 

§  124.  Fraudulent  Devices. —  Of  course,  there  is  an  infi- 
nite variety  of  fraudulent  devices,  which  very  properly  come 
under  the  designation  of  "  bad  causes,"  but  it  is  not  incum- 
bent upon  you  to  presume  against  your  client's  fair  dealing; 


ABOUT  FALSE  ASSEVP^IIATIONS.  15^ 

on  the  contrary,  he,  in  common  with  all  men,  is  entitled  to 
the  proverbial  presumption  of  innocence.  It  is  not  your 
duty  to  try  his  case  in  the  court  of  conscience  before  you 
try  it  in  a  court  of  law,  or  laboriously  to  investigate  all  the 
circumstances,  with  the  view  of  discovering  any  evidence  of 
foul  play  that  may  be  lurking  in  any  of  its  convolutions. 
If  his  case  is  fair  upon  its  face,  and  you  should  have  no 
good  reason  aliunde  for  suspecting  his  good  faith,  you  are 
justified  in  accepting  his  cause.  The  true  guides  in  such 
questions  are  common  sense  and  honor.  The  first  will  pre- 
vent you  from  going  into  Quixotic  extremes,  and  doing 
works  of  supererogation  in  the  way  of  conscientious  self- 
denial  ;  the  other  will  keep  you  clear  of  participation,  per- 
sonal or  professional,  in  the  dishonorable  practices  of  a 
knavish  client. 

§  125.  About  False  Asseverations. —  The  second  charge 
which  has  been  made  against  the  profession  is,  that  lawyers^ 
in  their  addresses  to  juries  often  make  false  assertions  of 
the  justice  of  their  client's  cause,  or  their  individual  belief 
in  its  justice,  and  in  this  offend  against  morality  and  good 
conscience.  Is  there  anything,  it  is  asked,  in  the  relation 
of  client  and  counsel  which  releases  the  latter  from  the 
obligation,  incumbent  upon  him  as  upon  all  men,  to  tell  the 
truth?  Why  has  he  a  right,  by  vehement  asseverations  of 
the  truth  of  statements  which  he  does  not  believe,  to  throw 
the  weight  of  his  personal  character  into  his  client's  scale, 
and  seek  to  influence  the  jury  in  his  favor?  These  false 
asseverations,  it  is  argued,  have  been  believed,  or  they  have 
not.  If  they  have,  and  have  influenced  the  jury,  the  client 
has  gained  an  advantage  by  what  amounts  in  effect  to  false 
testimony,  the  counsel  being  the  false  witness.  If  it  has 
not  been  believed,  the  advocate  has  tried  to  influence  the 
jury  improperly  and  failed,  and  is  as  guilty  in  point  of  in- 
tention as  if  he  had  succeeded.  At  best  he  has,  following 
a  bad  fashion,  and  without  the  intention  of  deceiving,  put 
on  the  habiliments  of  falsehood,  and  posed  in  a  court  of 
justice,  not,  it  is  true,  as  a  false  witness,  but  as  the  "  coun- 


154  HINTS  ON  ADVOCACY. 

terfeit  presentment"  of  one,  thus  lowering  the  dignity  of 
the  profession. 

§    126.    Brougham  and  Dr.  Paley. — The  most  extreme 
.advocate  of  the  privileges  of  counsel  was  Lord  Brougham, 
■who,  in  his  speech  in  Queen  Caroline's  case,  defined  the  du- 
ties of  an  advocate  thus:   "An  advocate  —  ])y  the  sacred 
duty  of  his  connection  with  his  client — knows  in  the  discharge 
of  that  office  l)ut  one  person  in  the  world  —  that  client — and 
none  other.     To  serve  that  client  by  all  expedient  means  ; 
to  protect  that  client  at  all  hazards  and  costs  to   all   others 
(even  the  party  already  injured)    and  amongst  others  to 
himself,    is   the    highest  and    most    unquestioned    of    his 
duties."     If  this  is  a  correct  exposition  of  the  privileges 
of  an  advocate,  it  is  conclusive  upon  the  question,  for  "  all 
expedient  means"  would  include  much  more  than  the  ob- 
jectional)lc  practice  under  consideration.     Lord  Brougham's 
authority,    however,  on    this  point  is  very  generally  con- 
troverted.      He    Avas    speaking    under   very    exciting    and 
extraordinary  circumstances;  defending  the  character  of  a 
woman  against  the  inveterate  enmity  of  a  great  King,  he 
wn)uld  naturally  arrogate  to  himself  the  broadest  privileges 
possible.     Where  the  character  of  a  woman  or  the  life  of  a 
man  is  at  stake,  an  advocate  would  naturally  seek  to   avail 
himself  of  all  the  means  which  God  and  nature  had  put  into 
his  hands.     Cooler  critics,  however,  refuse  to  recognize  the 
validity  of  this  charter,  "  wide  as  the  winds,"  which  Lord 
Brougham  had  conferred  upon  the  profession,  and  restrict 
the  privileges  of  counsel  within  nmch  narrower  limits. 

The  most  usual  defense  of  this  obnoxious  practice  is  that 
these  false  asseverations  are  privdeged,  being  a  mere  fashion 
■of  speech,  sanctioned  by  long  custom,  and  innocent,  because 
■nobody  ex]-ects  the  truth  from  a  lawyer  "  on  his  legs  "  in  a 
court  of  justice.  Dr.  Paley  is  the  standing  authority  for  this 
doctrine.  He  says:  "There  are  falsehoods  that  are  no 
ilies,  i.  c,  not  criminal"  (among  others)  "a  criminal 
.pleading  not  guilty ;  an  advocate  asserting  the  justice,  or 
.his  belief  in  the  justice  of  his  client's  cause  .     *     *     *     * 


THE  COURVOISIER  CASE.  155 

no  confidence  is  destroyed,  because  none  is  reposed  ;  no 
promise  to  speak  the  truth  is  viohited,  because  none  is 
given."  To  say  nothing  of  the  unsavory  company  in 
which  the  defense  places  the  advocate — ill-starred  conjunc- 
tion of  the  bar  and  the  dock  ! —  it  is  not  very  flattering  to 
the  profession  to  be  thus  acquitted  of  lying,  because  no- 
body will  believe  them. 

§  127.  The  Courvoisier  Case. —  A  very  thorough  dis- 
cussion of  this  subject  took  place  in  England  about  forty 
years  ago.  In  May,  1840,  Lord  William  Russell,  an  old 
man,  was  found  murdered  in  his  bed,  evidently  assassinated 
for  his  money  and  other  valuables.  His  valet,  Courvoisier, 
was  suspected  and  tried.  He  was  defended  by  Mr.  Philips, 
an  eminent  barrister,  who,  as  he  asserts,  fully  believed  that 
his  client  was  innocent,  because  the  evidence  against  him 
was  purely  circumstantial,  and  there  was  strong  reason  to 
suspect  that  certain  policemen,  actuated  by  greed  for  the 
large  rewards  that  had  been  offered,  had  conspired  to  effect 
the  conviction  of  the  prisoner,  in  order,  as  Mr.  Philips 
strongly  expressed  it,  "  to  divide  the  reward  money  upon 
Courvoisier' s  coffin." 

In  the  course  of  the  trial,  which  lasted  three  days, 
Courvoisier  suddenly  demanded  an  interview  with  his  coun- 
sel, confessed  that  he  had  murdered  his  master,  but  insisted 
that  they  should  defend  him  to  the  uttermost.  This  Mr. 
Philips  proceeded  to  do,  and  his  manner  of  discharging  his 
duty  as  an  advocate  subjected  him  to  very  grave  charges. 
Courvoisier  was  found  guilty  and  duly  executed,  and  after  his 
confession  to  his  counsel  had  been  made  public,  Mr.  Philips 
was  charged  by  the  Examiner  newspaper,  and  afterward  by 
other  publications,  with  having,  after  Courvoisier' s  confes- 
sion, asseverated  his  belief  in  that  person's  innocence,  calling 
God  to  witness  his  sincerity,  in  the  most  impassioned  manner. 
The  further  charg-e  that,  knowins;  Courvoisier  to  be  the  sole 
murderer,  he  imputed  guilt  to  the  female  servants,  was  denied 
and  not  sustained  by  proof.     On  this  point  there  can  be  no 


156  HINTS  OX  ADVOCACY. 

question.      Had  he  been  Lniilly  of  that   outrage,  no  punish- 
ment could  have  ])eon  too  severe. 

'Phere  was  of  course  a  defense  agahist  the  allegation,  that 
he  had  professed  l)elief  in  Courvoisier's  iiniocence  ;  the  con- 
troversy, conducted  with  the  utmost  acrimony,  ran  for 
months  through  the  leading  newspapers  and  other  periodi- 
cals of  Knghuid,  and  was  revived  ten  years  afterward  by 
the  Ex-aminer  in  a  series  of  articles  assailing  Mr.  Philips. 
On  this  i)oint  there  was  a  question  of  fact.  The  reports  of 
the  trial  differed  materially  from  each  other,  and  it  was  by 
no  means  certain  what  Mr.  Philips  did  say  on  the  trial. 
He  always  denied  that  he  had  professed  any  belief  in  the 
prisoner's  innocence.  Of  course,  public  opinion  remained 
unsettled,  but  with  a  preponderance  in  favor  of  Mr.^ 
Philips'  innocence  of  any  inii)ropriety  or  unprofessional 
conduct. 

§  128.  Its  Moved.  —  Now,  the  "moral"  of  the  Cour- 
voisier  case  is  this  :  It  is  not,  or  at  least  should  not  ])e,  pro- 
fessional for  an  advocate  to  obtrude  upon  a  jury  in  any 
case,  civil  or  criminal,  his  personal  knowledge  or  belief. 
If  he  states  what  purports  to  be  a  fact  as  of  his  knowledge, 
he  is  testifying  without  having  been  sworn.  If  he  states 
his  belief  only,  he  is  giving  his  client  the  benefit  of  his  in- 
dividual reputation  for  sincerity  and  acumen.  This  is 
neither  his  duty  nor  his  client's  right.  It  is  unjust  that  an 
advocate  shall  say  in  effect  to  a  jury,  "  I  am  a  man  of  great 
ability,  deep  learning,  extensive  experience,  and  /  believe 
this;  you  should  do  so  too."  It  is  unfair  if  he  does  be- 
lieve it,  and  nefarious  if  he  does  not.  It  is  idle  to  say  that 
such  statements  should  not  influence  a  jury.  They  should 
not,  but  they  sometimes  do;  and  so  far  as  they  do,  they  are 
in  derogation  of  the  duty  of  the  jury  to  find  "  according  to 
the  evidence." 

§  129.  Judicial  Rehuhe. — This  practice  is  sometimes 
justly  reprobated  by  courts.  An  acute,  but  severe,  judge 
once  said  to  a  jury :   "  The  counsel  has  said  '  I  think  this,' 


THE  SUM  OF  THE  MATTER.  157 

and  '  I  believe  that.'  A  counsel  has  no  right  to  say  what 
he  thinks  or  what  he  believes  ;  but  since  he  has  told  you, 
gentlemen,  his  belief,  I  will  tell  you  mine — that  if  you  were 
to  believe  him,  and  acquit  his  client,  he  would  be  the  very 
first  man  in  this  court  to  laugh  at  you." 

§  130.  The  jSum  of  the  Matter.— The  sum  of  the  whole 
matter  is,  that  there  is  no  code  of  morality  applicable  espe- 
cially to  any  profession  or  avocation.  The  tradesman  can 
not  plead  the  custom  of  the  trade  as  an  excuse  for  misrep- 
resentation of  the  quality  of  goods  ;  the  mechanic,  for  slip- 
shod and  "slighted"  work;  the  draper,  for  imitation 
articles  sold  as  genuine;  the  grocer,  for  "watering  the 
brandy,  and  sanding  the  sugar,  before  he  goes  to  prayers,"  as 
the  old  joke  has  it ;  the  apothecary,  for  dispensing  adulter- 
ated drugs  ;  and  the  advocate  has  no  better  right  than  these, 
for  claiming  exemption  from  moral  responsibility  for  his 
acts  in  the  course  of  his  business.  He  can  not  lay  the  blame 
on  his  client ;  the  principle  of  respondeat  superior  is  not 
recognized  in  the  court  of  conscience.  It  is  the  man,  and 
not  the  advocate,  whose  responsibility  is  in  question.  One 
of  the  warlike  baron-bishops  of  the  middle  ages  was  taxed 
by  the  all-licensed  jester  of  his  household  with  certain  of- 
fenses against  moral  law.  In  reply  he  claimed  the  benefit 
of  clergy.  He  was  a  bishop,  as  well  as  a  knight,  he  said, 
and  the  devil  had  no  power  over  him.  "  But,"  retorted 
the  fool,  "  when  the  devil  flies  awav  with  the  knight,  what 
will  become  of  the  bishop?  " 


158 


HINTS  ON  ADVOCACY. 


CHAPTEK  XI  — American  Forensic   Oratory. 


SECTION. 

SECTION. 

131.  Few  American  State  Trials. 

136.  y.  S.  Prentiss. 

132.  But  other  Exciting 'riienu's. 

137.  Ilein-y. 

133.  Political  and  J^egal  Careers. 

138.  Wirt.^ 

134.  Webster. 

139.  Clay. 

135.  Choate. 

1-10.  American  Love  of   Oratory 

§  131.  Feio  American  State  Trials. —  It  has  not  been 
the  fortune  of  the  American  bar  to  contribute  ])v  its  forensic 
ability  to  the  establishment  of  civil  or  political  liberty.  In 
England,  the  legal  profession  has  often  been  arrayed  against 
arbitrary  power,  and  proved  itself  a  fearless  and  formidable 
champion  of  popular  rights  —  notably  in  the  trial  of  the 
bishops  in  the  dark  days  of  James  II.,  and  the  question  of 
"  General  Warrants,"  and  the  prosecutions  founded  on  the 
law  of  libel  in  the  closing  years  of  the  last  century.  Here 
the  government  has  rarel}^  come  into  conflict  with  the  liberty 
of  the  citizen,  and  still  less  has  it  sought  to  make  the  judi- 
ciary an  instrument  of  oppression.  Lacking  the  lofty 
themes  which  inspired  Somers,  Erskine,  and  others,  Ameri- 
can advocates  have  nevertheless  proved  themselves  not  un- 
worthy rivals  of  those  great  masters  of  forensic  oratory. 

§  132.  Biit  other  Exciting  Themes. —  In  this  day,  with 
our  security  for  life  and  property,  our  modern  organization 
of  society,  the  more  certain  enforcement  of  laws,  and  more 
methodical  arrangement  of  all  the  affairs  of  life,  there 
arise  few  occasions  when  the  higher  flights  of  forensic  elo- 
quence become  appropriate.  One  can  not  argue,  in  the 
*Quousque  tandem  Oatilina'  style  a  case  involving  contribu- 


POLITICAL  AND  LEGAL  CAREERS.  159< 

tory  negligence,  or  the  constitutionality  of  a  law  affecting 
private  property  interests.  Yet,  human  passion  still  rules 
human  action,  and  in  the  most  prosaic  communities  some- 
times occur  tragedies,  as  harrowing  as  any  which  have  ever 
been  portrayed  upon  the  stage.  The  heart-break  of  the 
deserted  wife,  the  destitution  of  abandoned  children,  the 
ruin  of  domestic  happiness,  confidence  betrayed,  plighted 
faith  violated  —  these  are  of  daily  occurrence.  They  have 
their  prosaic  side  ;  they  are  divorce  suits,  claims  for  alimony,, 
actions  for  damages  —  but  the  orator  is  unworthy  of  the 
name  if  he  fails  to  draw  them  out  of  their  homely  disguises,. 
and  exhibit  them  as  the  great  domestic  and  social  crimes 
they  really  are. 

§  133.  Political  and  Legal  Careers. —  In  America,  as- 
in  England,  legal  and  political  careers  are  interchangeable. 
Most  of  our  great  statesmen,  living  and  dead,  have  been 
lawyers,  and  very  few  men,  eminent  at  the  bar  or  upon  the 
bench,  have  not  to  some  extent  essayed  a  political  role^ 
Political  life  in  this  country  implies  more  connection  with 
the  masses  than  in  England,  and  the  American  practice  of 
uniting  the  profession  of  advocate  and  attorney  in  one  per- 
son brings  the  lawyer  into  closer  contact  with  the  j^eople,. 
than  is  usual  with  English  barristers  ;  and  from  this  and 
other  causes  growing  out  of  the  peculiar  characteristics  of 
the  people,  forensic  oratory  has  a  more  popular  cast  in  the 
United  States  than  in  any  other  country.  The  average 
lawyer  vibrates  between  the  bar  and  the  stump,  and  the  tone 
of  the  latter  school  of  eloquence  to  a  great  degree  pervades- 
the  former.  Although  the  advocate  may  thus  be,  in  some 
degree,  affected  with  clap-trap  and  "buncombe,"  he  ac- 
quires greater  facility  in  addressing  a  jury,  and  a  more 
thorough  comprehension  of  the  character  and  genius  of  the 
people  who  furnish  the  material  of  juries..  It  is,  of  course,, 
in  addressing  juries  that  oratory,  properly  so-called,  can  be 
displayed.  One  argues  to  a  court,  and  addresses  the  rea- 
son of  the  judge;  one  declaims  to  a  jury,  and  appeals  to 
the  feeling  as  well  as  the  reason  of  the  men  who  compose  it. 


160  HINTS  ON  ADVOCACY. 

The  graces  of  rhetoric  and  elocution  are  not  inappropriate 
in  the  gravest  legal  argument,  but  they  are  ni(>rcly  ancillary. 
Before  the  jury  they  assume  the  leading  place.  The  win- 
ning manner,  the  artful  ai)peal,  the  pathos,  the  ridicule,  the 
invective,  which  the  able  advocate  can  .so  skilfully  emi)l()y, 
carry  the  jury  to  the  desired  goal,  and  solid  reason  and 
sound  argument  follow  haltingly  behind.  The  jury  lawyer 
is,  therefore,  the  forensic  orator,  and  some  of  the  most  elo- 
quent American  speakers  have  achieved  their  greatest  tri- 
umphs in  that  arena.  There  is  a  long  roll  of  them.  Pat- 
rick Henry,  Wirt,  Clay,  Webster,  Choate,  Prentiss, 
many  others  whose  careers  closed  before  the  nineteenth  cen- 
tury was  half  spent,  have  been  replaced  by  worthy  suc- 
cessors. 

§  134.  Webster. —  It  is  almost  a  truism  to  say  that  among 
great  American  orators  Wel)ster  stands /c/c//e^;r/?icep.s'.  His 
power  over  the  heart,  however,  was  obtained  b}'  first  subju- 
gating the  mind.  His  acute  analytical  faculties,  his  weighty 
•reasoning,  his  mastery  of  the  subject,  his  style — full  with- 
out redundance,  lucid,  powerful,  tofus,  teres,  atque  rotuii- 
dus  —  commend  themselves  more  to  intellectual  admiration 
than  to  mere  emotional  acceptance. 

It  would  be  impossible  within  any  reasonable  limits  to 
give  an  adequate  specimen  of  his  forensic  eloquence.  The 
most  notable,  however,  of  his  speeches  to  juries  was  deliv- 
ered in  the  trial  of  Knapp  for  murder,  and  is  remarkable  as 
one  of  the  most  perfect  specimens  extant  of  the  art  of 
advocacy  —  well  worth  the  careful  study  of  the  young  law- 
yer. A  single  paragraph  must  suffice  as  an  example  of  his 
powerful  style  : 

"An  aged  man,  without  an  enemy  in  tlie  world,  in  his  own  home  and 
in  his  own  bed,  is  made  tlae  victim  of  a  butciierly  murder,  for  mere  pay. 
Truly,  here  is  a  new  lesson  for  painters  and  poets.  Whoever  shall  here- 
after draw  the  portrait  of  murder,  if  he  will  show  it  as  it  has  been  ex- 
hibited, in  an  example  where  such  an  example  was  last  to  have  been 
looked  for,  in  the  very  bosom  of  our  New  England  society,  let  him  not 
give  it  the  grim  visage  of  Moloch,  the  brow  knitted  by  revenge,  the  face 
black  with  settled  hate,  and  the  blood- shot  eves  emitting  livid  tires  of 


choatf:.  161 

malice.  Let  liim  draw  rather  a  decorous,  smooth-faced,  bloodless  de- 
mon, a  picture  iu repose  rather  than  in  actiuii;  not  so  much  an  example 
of  human  nature  in  its  depravity  and  in  its  paroxysms  of  crime,  as  an 
infernal  nature,  a  fiend  in  the  ordinary  display  and  development  of  his 
character." 

In  the  tirgumeut  which  follows  he  is  thoroughly  master 
of  the  situation  ;  makes  no  allegation  which  he  does  not  sub- 
stantiate, cither  by  the  declaration  of  a  witness  or  a  fair  de- 
duction from  the  facts  of  the  case  established  by  the  testi- 
mony, leaves  no  point  available  for  effective  reply,  and  ex- 
cludes the  possible  accuracy  of  any  hypothesis  inconsistent 
with  the  guilt  of  the  prisoner.  As  a  chain  of  ratiocination, 
it  is  absolutely  impregnable. 

Webster  was  a  man  of  remarkable  congruities.  His 
manner  was  a  perfect  exponent  of  personal  dignity.  His 
massive  head,  his  imposing  figure,  his  few,  slow,  impressive 
gestures  accorded  well  with  his  forceful  nature.  His  voice 
was  full,  flexible  and  skilfully  modulated.  There  is  some- 
thing very  majestic  in  this  perfect  fitness  for  a  special  sphere. 
This  matter  of  personal  endowment  is  of  infinite  importance 
to  the  orator,  more  than  to  any  other  suitor  for  public  favor. 
The  author  is  like  the  enchanted  knight  of  old,  who  strode 
invisible  through  hostile  camps  —  the  world  sees  only  the 
result  of  his  work.  The  actor  has,  to  sustain  him,  stage 
accessories,  costume,  music,  the  talent  of  the  play-wright. 
The  orator  stands  alone,  the  audience  before  him  and  the 
word  in  his  heart. 

§  185.  Choate.  —  Mr.  Webster  possessed  even  the  rare 
discernment  to  understand  the  limitations  of  his  own 
powers  as  an  orator.  It  is  said  that  he  was  specially 
sparing  of  ornamentation  and  peculiarly  disposed  to  apply 
the  test  of  reason,  cold  and  neutral,  whenever  he  was  op- 
posed to  Rufus  Choate.  He  would  not  vie  with  the  splendid 
diction  of  his  gifted  compeer.  He  was  wont  to  ridicule  to 
juries  these  flights  of  fancy,  and  to  strip  from  the  question 
the  graces  of  Choate' s  rhetoric,  which  could  idealize  a  mere 
mop-stick  of  a  fact  into  a  gay  and  gallant  Chevalier  Feath- 
ertop.     This,  however,  was  the  result  of  his  solicitude,  lest 


162  HINTS  ON  ADVOCACri'. 

the  jury  he  unduly  heguilcd.  lu  his  own  proper  person 
he  entertained  a  generous  admiration  of  Choate's  resistless 
eloquence,  which  swayed  the  hearts  of  men,  as  the  "  breeze 
bends  the  barley." 

"This,"  Mr.  Webster  once  declared  to  a  colleague,  "  is 
reason,  impelled  l)y  passion,  sustained  by  legal  learning, 
and  adorned  by  fancy." 

When  these  distinguished  advocates  chanced  to  be  opi)0- 
nents,  a  greater  contrast  cannot  well  be  imagined.  Choate 
was  alert  in  every  fibre.  He  was  like  a  personified  passion, 
and  every  gesture  was  expressive  of  his  exalted  excitement. 
He  would  shake  his  long,  quivering  nervous  fingers  above 
his  head.  He  would  advance  toward  the  jury  with  an  in- 
tent eye  and  an  impressively  lowered  voice.  Sometimes  he 
would  draw  his  figure  to  its  full  height,  and  fling  his  right 
arm  aloft  with  so  exultant  a  motion,  that  it  gave  an  effect  as 
if  he  had  suddenly  sprung  into  the  air.  Prejudice,  law, 
right,  reason  went  down  before  that  whirlwind  of  words. 
There  arc  instances  of  logic  sufiiciently  stout  and  tough, 
and  facts  so  deeply  rooted  as  to  withstand  it — but  they  were 
rare. 

When  a  speaker  is  in  the  midst  of  an  impassioned  ad- 
dress, let  but  some  allusion,  charged  with  an  unconsciously 
ludicrous  suggestion,  escape  him —  and  down  he  comes  with 
the  velocity  of  a  collapsed  balloon.  The  boundaries  be- 
tween the  pathetic  and  the  absurd  are  ill-defined,  and  to 
enact  successfully  the  "  pity  my  sorrows  "  role,  one  must 
needs 

" distinguish  and  divide 

A  liair  'twixt  soutii  and  southwest  side." 

No  one  so  well  understood  the  lachrjnnose  possibilities  of 
a  jury  as  Rufus  Choate.  He  is  reputed  to  have  availed 
himself  of  this  knowledge. 

"  Why,  that  man  can  cant  his  countenance  so  as  to  draw 
tears  from  your  eyes,"  declared  an  indignant  suitor  whose 
interests  had  suffered  from  the  advocate's  eloquence. 

The  solidity  of  Choate's  genius,  his  deep  and  thorough 


PRENTISS.  163 

knowledge  of  the  law,  his  quickness  of  perception,  his  skill 
in  the  examination  of  witnesses  and  marshalling  of  facts, 
his  immense  capacity  for  professional  toil  dwarf  in  the  esti- 
mation of  the  bar  the  grace  of  his  rhetoric.  But  to  the 
general  public  the  style  of  expression  and  illustration  that 
embellishes  his  cogent  argument  is  so  brilliant,  that  the 
fioriture,  to  use  a  musical  term,  quite  overpowers  the  ster- 
ling merit  of  the  theme  —  and  it  certainly  renders  his  few 
printed  efforts,  although  on  subjects  as  dead  as  Ariovistus, 
interesting  essays — 

miscuit  ritile  dulci 


Lectorem  delectando  pariterque  monendo. 

His  prancing  *'  substantive  and  six,"  which  he  was  wont 
to  drive  so  recklessly  through  all  his  harangues,  was  con- 
spicuously absent  from  his  social  witticisms,  of  which  Mr. 
E.  P.  Whipple  in  his  recent  admirable  biographical  essay 
has  preserved  specimens  that  rival  the  brilliance  of  Sheri- 
dan. Choate's  sarcasm  has  the  sharp-shooter's  accuracy, 
and  it  has,  too,  a  wonderful  spontaneity.  It  is  even  more 
remarkable  in  lacking  that  usual  concomitant  of  satire,  a 
covert  malignity. 

§  136.  8.  S.  Prentiss. — The  adroit  and  unerring  tact 
which  was  so  marked  a  factor  in  Choate's  forensic  success, 
was  also  possessed  by  S.  S.  Prentiss.  He  was  endowed  in  a 
notable  degree  w^ith  that  fine  inexplicable  sixth  sense,  which 
adopts  instinctively  the  right  phrase,  the  gesture,  even  the 
very  glance,  certain  to  convince  the  reason,  fascinate  the 
imagination  and  enthrall  the  heart,  which  is  a  pre-requisite 
of  oratory.  In  the  delicate  matter  of  seeking  to  conciliate 
a  jury  —  a  difficult  task  and  liable  to  be  grossly  patent  — 
Prentiss  pre-eminently  displayed  this  tact. 

"My  clients  have  come  before  you  for  justice.  They  have  fled  to 
you,  eveu  as  to  the  horns  of  the  altar,  for  protection,"  he  said,  when  he 
stood  up  to  address  the  jury  in  the  Wilkinson  case.  "  Here,  in  the  heart 
of  Kentucky,  they  have  sought  and  obtained  an  unprejudiced  and  im- 
partial jury.  You  hold  in  your  hands  the  balance  of  justice;  and  I  ask 
and  expect  that  you  will  not  permit  the  prosecution  to  cast  extraneous 
and  improper  weights  into  the  scale  against  the  lives  of  the  defendants. 


164  HINTS  ON  ADVOCACY. 

You  constitute  the  mirror  whose  office  it  is  to  reflect  in  your  verdict  the 
law  and  the  evidence  which  liave  been  submitted  to  you.  Let  no  foul 
breath  dim  its  pure  surface  and  cause  it  to  render  back  a  broken  and 
distorted  image.  Let  not  tlie  learned  counsel  who  conducts  the  private 
part  of  this  prosecution  act  the  necromancer  witli  you,  as  he  did  with 
the  populace  in  the  City  of  Louisville,  when  he  raised  a  tempest  which 
his  own  wizard  hand  could  not  have  controlled.  Well  might  he  exelaim 
in  reference  to  that  act  like  the  foul  spirit  in  Manfred  : — 

•  I  am  the  rider  of  the  wind, 
The  stirrer  of  the  storm ; 
The  hurricane  I  left  behind. 
Is  still  with  lightning  warm.' 

Aye, so  it  is  with  liglitning  warm;' but  you,  gentlemen,  will  perform 
the  humane  office  of  a  conductor,  and  convey  this  electric  fluid  safely  to 
the  earth.'" 

His  speech  in  this  same  case  furnishes  specimens  of  the 
most  bitter  invective  ever  heard  in  a  court  of  justice.  It  is 
said  to  be,  however,  as  it  is  printed,  the  merest  ghost  of 
itself.  Prentiss  was  empliatically  an  orator,  and,  shorn  of 
the  charm  of  his  delivery,  the  mere  words  are  in  compari- 
son lifeless.  He  himself  said  that  he  would  rather  make 
ten  speeches  than  write  one.  The  play  of  expression,  the 
inflections  of  his  finely  modulated  voice,  the  glance  of  his 
eye  were  such  potent  adjuncts  to  bis  efforts  that  he  has  been 
admonished  b}  a  crowd:  "Look  this  way,  Prentiss!" 
"  Turn  round  here  !  "  etc. 

His  fame  as  an  orator  and  an  advocate,  like  that  of  Rufus 
Choate,  in  popular  esteem  overshadowed  his  character  as 
jurist.  But  despite  his  political  absorptions  and  his  bustling 
life,  his  legal  attainments  were  great,  and  won  full  recogni- 
tion from  the  bar  and  bench.  Indeed,  Judge  Sharkey,  who 
was  for  many  years  Chief  Justice  of  Mississippi,  and  had 
therefore  the  best  opportunities  for  sounding  Prentiss' 
depth,  once  declared  to  the  editor  of  this  work  that  he  con- 
sidered S.  S.  Prentiss,  notwithstanding  his  3^outh,  a  "  pro- 
found lawyer." 

§  137.  Henry. —  Patrick  Henry,  however,  hid  no  light  of 
legal  learning  under  a  bushel.  Without  reading  and  without 
logic,  his  sphere  was  necessarily  circumscribed.      He  was 


VVIKT. 


165 


the  onitor,  and  the  orator  only.  His  influence  died  with  liis 
matchless  voice  and  impassioned  action,  and  he  left  nothing 
behind  him  save  a  few  patriotic  sentences,  which,  however, 
will  live  as  long  as  the  language  in  which  they  were  uttered. 
Mr.  Jefferson  says  of  him  :  "He  spoke  as  Homer  wrote. 
*  *  *  I  never  heard  anything  that  deserved  to  be  called 
by  the  same  name  with  what  flowed  from  him."  Juries  re- 
sponded to  his  control  as  the  trained  steed  obeys  the  rein. 
"Patrick  Henry  couldn't  save  him,"  was  for  a  long  time 
an  expression  in  common  use  to  denote  the  desperate  straits 
of  a  criminal. 

Dr.  Archibald  Alexander,  who  heard  some  of  his  greatest 
speeches,  thus  analyzes  Henry's  oratory: 

"  The  power  of  Henry's  eloquence  was  due,  first,  to  the  greatness  of 
his  emotion  and  passion,  accompanied  with  a  versatility  which  enabled 
him  to  assume  at  once  any  emotion  or  passion  which  was  suited  to  his 
ends.  Not  less  indispensable,  secondly,  was  a  matchless  perfection  of 
the  organ's  of  expression,  including  the  entire  apparatus  of  voice,  intona- 
tion, pause,  gestures,  attitude,  and  indescribable  play  of  countenance. 
In  no  instance  did  he  ever  indulge  in  an  expression  that  was  not  instantly 
recognized  as  nature  itself;  yet  some  of  his  penetrating  and  subduing 
tones  were  absolutely  peculiar,  and  as  inimitable  as  they  were  indescrib- 
able. These  were  felt  by  every  hearer  in  all  their  force.  His  mightiest 
feelings  were  sometimes  indicated  and  communicated  by  a  long  pause, 
aided  by  an  eloquent  aspect  and  some  significant  use  of  the  finger." 

§  138.  Wirt. —  Indissolubly  connected  with  the  name  of 
Henry  is  that  of  his  biographer,  Wirt,  who  displayed  great 
eloquence  and  learning  at  the  bar,  notably  in  the  prosecu- 
tion of  Aaron  Burr. 

§  139).  Clay. — In  this  trial  was  also  engaged  Henry  Clay, 
a  man  of  wonderful  magnetism  and  universal  genius,  equally 
great  on  the  stump,  before  a  jury,  and  in  the  gravest  coun- 
cils of  the  nation.  He  himself,  however,  was  disposed  to 
account  for  his  pre-eminence  as  an  advocate  and  an  orator 
on  more  prosaic  grounds  than  natural  endowment. 

"  I  owe  my  success  in  life,"  he  said  once  in  addressing  a  graduating 
class  of  law  students,  "  to  one  single  fact,  namely,  that  at  an  early  age  I 
commenced  and  continued  for  some  years  the  practice  of  daily  reading 
and  speaking  the  contents  of  some  historical  or  scientific  book.  These 
off-liand  efforts  were  sometimes  made  in  a  cornfield ;  at  others  in  the 


166  HINTS  ON  ADVOCACY. 

forest,  and  not  uiifrequeutly  in  sinne  distunt  barn,  willi  the  horse  and  ox 
for  my  only  anditoi:^.  It  is  to  this  early  practice  of  the  art  of  all  arts, 
that  I  am  indebted  for  the  primary  and  leading  impulses  that  stimulated 
my  progress,  and  have  shaped  and  moulded  my  destiny." 

Thus  he  phiced  before  himself  at  the  outset  of  life  a 
worthy  ambition,  and  pursued  it  with  zeal.  So  strong  a 
fascination  did  the  career  he  had  chosen  exert  upon  hiin, 
and  so  devoutly  did  his  every  thought  turn  toward  it,  that 
in  his  first  effort  outside  of  a  barnyard,  he  inadvertently 
addressed  a  youthful  debating  society  as  "  Gentlemen  of  the 
jury,"  to  the  great  delight  of  that  sage  body.  But  as 
Henry  Clay  assumed  more  and  more  the  character  of  states- 
man, the  bar  gradually  lost  him,  and  the  greatest  efforts  of 
his  life  do  not  properly  appertain  to  forensic  oratory  ;  so 
with  a  host  of  others  —  Calhoun,  Crittenden,  Benton, 
Hayne,  Bell,  Grundy, 

"  What!  will  the  line  stretch  out  to  the  crack  of  doom?" 
§  140.  American  Love  of  Oratory. —  Americans  are  a 
peculiarly  speech-loving  and  speech-making  people.  Men 
who  can  speak,  and  the  multitude  who  merely  think  they 
can,  avail  themselves  of  every  decent  pretext,  from  the 
inauguration  of  a  president  to  the  presentation  of  a  cane, 
for  an  address,  an  oration,  or  more  modestly  but  not  less 
lengthily,  "a  few  remarks."  The  speaker  usually  ad- 
dresses a  docile  and  willing  audience  ;  for  widely  diffused  as 
is  the  cacoethes  loquendi  in  the  orators  of  the  day,  commen- 
surate with  it  is  the  cacoethes  audiendi  on  the  part  of  their 
hearers. 

To  a  degree,  culture  and  exigeant  taste  are  arrayed  against 
the  orator.  If  it  be  under  a  certain  grade  of  excellence,  the 
oration  is  regarded  simply  as  a  work  of  art,  and  is  criticised 
as  such,  as  coolly  as  if  it  were  a  statue  or  a  painting. 
Above  that  grade,  however,  nature  resumes  its  sway,  and 
the  heart  of  the  critic  becomes  as  fully  amenable  to  its  iu- 
fluence,  as  is  the  heart  of  the  clown  to  the  "  spread  eagle  " 
style  of  elocution  which  appeals  to  his  coarser  instincts. 


CLASSES  OF  JUD(JES. 


167 


('HAPTER  XII.— This  Honorable  Court. 


SECTION. 

141.  Classes  of  Judges. 

142.  Corrrupt  Judges. 

143.  Respect  for  the  Judicial  Office 


SECTION. 

144.  Patience  and  Impatience. 

145.  Argument  before  a  Court. 


§  141.  Classes  of  Judges, — The  relations  between  the 
bar  and  the  bench  have  a  very  important  influence,  as  well 
upon  the  due  administration  of  justice,  as  upon  the  profes- 
sional fortunes  of  the  individual  advocate.  As  judges  in 
this  country  are  usually  selected  by  the  citance-medley  of  pop- 
ular elections,  it  often  happens  that  men,  who  by  nature 
and  training  are  unfitted  for  them,  obtain  judicial  offices. 
It  is  profitable,  therefore,  for  the  advocate  to  study  care- 
fully, and  understand  thoroughly,  the  idiosyncracies  of  the 
judge  before  whom  he  habitually  appears.  The  ideal  judge 
is,  of  course,  an  impersonation  of  the  law,  calm,  patient, 
inflexible  and  infallible.  The  actual  judge  is  subject  to  a 
few  —  a  very  few  —  human  weaknesses.  He  is  sometimes 
captious,  impatient  and  irritable,  and  often  entertains  un- 
reasonable and  extreme  views  on  particular  subjects.  Some 
are  unduly  rapid  in  the  trial  of  causes,  the  testimony  is 
huddled  in,  too  little  time  allowed  for  argument,  and  cases 
disposed  of  without  proper  consideration  ;  others  err  in  the 
opposite  direction,  are  dilatory  in  all  things,  permit  inter- 
minable argument  on  minor  questions,  and  consequently  the 
docket  gets  sadly  in  arrears  ;  cases,  for  want  of  time,  go 
over  from  term  to  term,  and  justice,  though  not  denied,  is 
delayed. 

Judges  are  frequently  imbued  with  overweening  partiality 
for  particular  principles.     Sometimes  one  is  what  may  l)e 


168 


HIiNTsi  ON  ADV0CAC;Y. 


culled  a  "  woman "s  judge,''  because  it  is  with  the  utmost 
difficulty  that  he  can  be  induced  to  *make  a  ruling  adverse  to 
the  interests  of  a  feme  covert.  Sometimes  he  is  a  "cred- 
itor's judge,"  because  of  his  exceeding  strictness  in  marking 
what  may  have  been  done  amiss  by  debtors — in  the  way  of 
fraudulent  conveyances  and  the  like.  This  failing,  however, 
"  leans  to  virtue's  side  ;"  but  there  arc  judges  so  extreme, 
that  in  Portia's  place,  they  would  have  awarded  to  Shylock 
his  pound  of  flesh  upon  the  ground  that  a  deed  must  be 
construed  most  strongly  against  the  grantor,  and  that  the 
concession  of  the  flesh  carried  with  it  by  implication  the 
blood  necessary  to  make  the  grant  effectual.  There  is,  or 
rather  was,  also  the  "debtor's  judge."  Under  the  influ- 
ence of  intense  and  wide-spread  financial  pressure,  legisla- 
tures, in  former  times,  chartered  relief  banks  and  passed 
stay  laws,  and  judges  granted  injunctions  profusely,  and 
favored  defenses  of  more  than  doul)tful  legality.  These 
times  have  passed,  and  that  style  of  judge  is  extinct — for 
the  present. 

§  142.  Corrupt  Judges.  —  Of  corrupt  judges,  nothing- 
whatever  need  be  said.  There  Avas  once  a  book  Avritten  de- 
scriptive of  Iceland  ;  the  heading  of  Chapter  XIV  was 
"Concerning  the  Snakes  of  Iceland;"  the'  body  of  this 
(the  shortest  chapter  on  record)  was  as  follows:  "  There 
are  no  snakes  in  Iceland."  To  the  credit  of  the  profession 
it  may  be  affirmed  as  positively,  that  there  are  no  corrupt 
judges  in  the  United  States.  Gloves  stuffed  with  gold 
pieces  do  not  now,  as  in  Lord  Bacon's  day,  come  to  the 
hands  of  judges.  They  touch  no  money  but  their  salaries, 
often  inadequate  compensation  for  their  services. 

§  143.  Respect  for  the  Judicial  Office. — It  seems  a  mere 
platitude  to  say  that  an  advocate  should  never  fail  in  respect 
for  the  judicial  office,  and  for  the  person  filling  it ;  yet,  in 
view  of  the  frequent  fines  imposed  for  contempt  of  court, 
that  sort  of  admonitionjs  not  wholly  superfluous.  It  often 
happens  that,  when  a  judge  is  impatient  and  irritable,  and  the 
advocate  over-zealous  and  excited,  a  ruling  of  supernatural 


CORRUPT  JUDGES. 


169 


stupidity,  as  the  latter  considers  it,  will  overthrow  his 
equilibrium  and  precipitate  a  collision.  In  that  sort  of 
<"ontcst  he  is  always  at  a  disadvantage  ;  his  judicial  opponent 
liolds  the  winning  hand,  and  if  he  does  not  proceed  to  thc^ 
length  of  actual  punishment  for  contempt,  will  probably 
otherwise  make  his  displeasure  felt.  It  is  a  grave  misfor- 
tune for  an  advocate  to  be  on  bad  terms  personally  with  th(! 
presiding  judge,  and  such  relations  should  be  sedulously 
avoided  by  all  means  consistent  with  self-respect.  Con- 
sciously or  unconsciously,  generally  the  latter,  the  judge 
will  incline  to  rule  adversely  to  the  obnoxious  counsel,  and 
in  effect  throw  upon  him  the  onus,  so  to  speak,  of  estab- 
lishing his  propositions  to  a  certainty,  not  required  of  other 
lawyers'.  Hence,  under  all  circumstances,  and  especially  in 
his  relations  with  the  bench,  the  advocate  should  hold  his 
temper  under  the  strictest  control.  A  perfect  command  of 
himself  in  this  respect  is  a  quality  as  indispensable  to  a 
lawyer,  as  strong  nerves  and  a  steady  hand  to  the  operating 
sm'geon.  There  have  been  good  lawyers,  even  great  law- 
yers, who  were  irritable  and  excitable, —  they  have  been 
good  and  great  lawyers  in  spite  of  this  capital  defect.  An 
advocate  in  court,  and  especially  with  reference  to  the  bench, 
should  strictly  preserve  his  official  character  of  an  officer  of 
the  court,  indulging  as  little  as  may  be  in  any  remarks 
touching  his  individual  personality.  He  should  endeavor  to 
keep  his  business  so  well  in  hand  that  he  has  rarely  occa- 
sion to  ask  a  favor  from  the  indulgence  of  the  bench  or  the 
courtesy  of  the  bar ;  for  a  man  never  appears  to  so  little 
advantage,  as  in  askins;  a  relaxation  of  rules  to  avert  the  con- 
sequences  of  his  own  negligence.  In  this  connection,  it 
may  as  well  be  said  that  an  advocate  should  spare  no  pains 
to  be  always  ready  for  trial  when  his  case  is  called.  In 
many  courts  it  is  the  habit  of  the  bar  to  waste  much  time, 
after  a  case  has  been  called,  before  it  is  "  taken  up."  There 
is  a  consultation  between  client  and  counsel  on  one  side  or 
both,  witnesses  are  out  of  place  and  have  to  be  called  or 
sent  for;  lawyers  are  not   in  court;  the  "papers"  are  in 


170 


HINTS  ON  ADVOCACY. 


the  lawyer's  desk,  and  have  to  be  brought  to  the  court- 
house. Under  these  circumstances  judicial  patience  waxeth 
very  thin,  and  there  is  a  peremptory  order  to  "  try,  or  con- 
tinue." Now  he,  who  by  dihitory  habits  frequently  thus 
impedes  the  course  of  justice,  becomes  the  reverse  of  a  fa- 
vorite with  the  judge,  and  will  probably  suffer  in  the  judi- 
cial appreciation  of  his  professional  efforts.  The  court  will 
not  mean  to  do  him  an  injustice,  but  will  nevertheless  be 
influenced  by  his  habitual  neglect  of  his  business.  Theoret- 
ically, the  court  decides  by  the  weight  of  argument,  without 
reference  to  the  speaker  who  propounds  it ;  practically,  the 
personality  of  the  advocate  more  or  less  sways  the  judicial 
mind. 

§  144.  Patience  and  Impatience. —  In  a  jur}^  trial  before 
an  impatient  judge  it  is  necessary  for  counsel  to  be 
especially  on  their  guard.  In  this  country,  and  particularly 
in  the  rural  districts,  witnesses  are  not  examined  rapidly. 
After  each  question  there  is  sometimes  a  consultation  be- 
tween counsel  and  client,  and  when  an  advocate  avails  him- 
self too  freely  of  the  large  liberty  he  enjoys  in  this  respect, 
he  is  sharply  called  to  order  by  the  court,  and  sometimes 
loses  a  point  he  might  have  made.  It  is  not,  however,  so 
much  in  the  examination  of  Avitnesses,  as  in  the  argument  of 
legal  questions,  that  the  impatience  of  judges  is  improperly 
manifested.  Some  judges  interrupt  continually,  propound- 
ing questions  and  stating  arguments  adverse  to  the  views  of 
the  speaker,  until  the  speech  of  the  advocate  becomes  a 
mere  wrangle  between  judge  and  lawyer.  This  is  unfair ; 
for  to  say  nothing  of  disconcerting  the  young  and  inexpe- 
rienced, it  disarranges  the  order  of  the  speaker's  ideas, 
compelling  him,  out  of  due  season,  to  answer  the  judicial 
interpellation,  whereas  later,  and  in  another  connection,  he 
could  much  more  effectually  have  done  justice  to  the  sub- 
ject. When  this  sort  of  scene  takes  place,  as  it  sometimes 
does,  in  the  presence  of  the  jury,  as  in  the  argument  of  a 
point  of  evidence,  or  other  collateral  issue,  it  is  particularly 
objectionable.     It  conveys  to  the  mind  of  the  jury  the  idea 


ARGUMENT  BEFORE  THE  COURT.  171 

that  the  court  is  snubbing  the  counsel,  and  seriously  dam- 
ages him  and  his  cause  in  their  estimation.  Now,  "  no  of- 
fense to  the  General,  or  any  man  of  quality,"  this  is  an 
evil  that  should  be  reformed  altogether.  There  are  only 
two  cases  in  which  the  court  should  ever  interrupt  the 
speech  of  an  advocate  ;  one,  when  he  is  arguing  a  point  on 
which  the  court  has  made  up  its  mind  in  his  favor, — to  save 
time  it  is  well  to  stop  him,  and  request  him  to  turn  his  at- 
tention to  some  other  part  of  the  case  ;  the  other,  when  the 
court  does  not  understand  his  position,  and  an  explanation 
is  desired.  Beyond  this,  there  should  be  no  interruption  ; 
and  even  within  these  limits,  the  fewer,  the  better. 

When  an  adverse  ruling  is  made,  especially  if  it  be  wholly 
unexpected,  the  losing  lawyer  sometimes  permits  himself  to 
be  placed  in  an  undignified  position.  In  asking  an  explana- 
tion he  renews  the  argument,  getting  up  a  discussion  with 
the  judge,  and  proceeding  to  such  length  that,  besides  losing 
his  point,  he  loses  his  temper.  This  is  a  pitiable  blunder ; 
for  a  man  is  never  so  absurd,  as  when  he  vainly  refuses  to 
take  "no"  for  an  answer.  Upon  an  adverse  decision, 
interlocutory  or  final,  the  proper  exception  should  be  taken, 
or  motion  entered  without  the  slightest  mark  of  irritation. 
Petulance  under  these  circumstances  is  ridiculous,  and  yet 
men  of  reputation  and  experience  often  place  themselves  in 
an  undignified  position  upon  occasions  of  unfavorable  foren- 
sic fortune. 

§  145.  Argument  before  the  Court. —  In  arguing  a  case 
before  the  court  it  is,  of  course,  necessary  that  you  should 
observe  order  and  proper  arrangement,  state  your  point 
distinctly,  and  sustain  each  position  taken  with  authorities. 
Of  course,  if  you  can,  your  cases  should  be  directly  in  point, 
or  as  near  it  as  may  be.  Cases,  so  indirectly  bearing  upon 
the  point  at  issue  as  to  require  a  long  argument  to  show 
that  they  are  applicable  at  all,  are  of  little  value.  However 
learned  the  judge  may  be,  it  is  best  not  to  presume  too 
much  upon  his  memory.  Except  in  the  simplest  proposi- 
tions, cite  the  authorities  even  if  you  do  not  read  them.     A 


172  HINTS  ON  ADVOCACY. 

multiplicity  of  nuthoritics  is  injudicious  ;  for  to  say  nothing 
of  Avcarying  the  court  and  yourself,  the  appearance  of  ped- 
antry is  objectionable,  and  some  of  the  cases  may  suggest 
distinctions  and  differences  adverse  to  your  views,  which 
had  previously  escaped  the  attention  of  your  learned  friend 
on  the  other  side.  In  this,  as  in  other  matters,  do  no  works 
of  supererogation  ;  cite  all  necessary  authorities  as  strong 
as  you  can  get  them,  and  no  more.  If  you  have  supple- 
mentary authorities,  it  is  well  enough  to  reserve  them  for 
3^0 ur  reply. 

It  is  superfluous  to  say  that  a  very  strict  attention  should 
be  paid  to  the  instructions  given  by  the  court  to  the  jury, 
and  in  asking  instructions  in  favor  of  your  views,  be  sure 
and  make  your  statement  of  the  point  as  clear  as  possible. 
The  court  will  not  be  confused  by  your  ambiguity,  but  the 
jury  may  ;  for  they  will  take  your  point  from  your  own 
statement,  and  not  from  that  of  the  court.  You  will,  of 
course,  take  care  that  every  instruction  in  your  favor  shall 
be  clearly  given  ;  for  however  pains-taking  and  accurate  the 
judge  may  be,  he  will  not  probably,  of  his  own  motion, 
instruct  as  fully  as  the  counsel  will  think  necessary  for  a 
proper  understanding  of  the  case  by  the  jury. 


INDEPENDENCE  OF  JURIES. 


173 


CHAPTER  XIII. — Gentlemen  of  the  Jury, 


SECTION. 

146.  Independence  of  the  Jury. 

147.  Peremptory  Challenges. 

148.  Dh'ect,  Plain,  Simple. 

149.  How  to  Address  a  Jury. 


SECTION. 

150.  Inequitable  Demands  or  De- 

fenses. 

151.  Feelings  and  Duty. 

152.  Appeal  to  Sense  of  Duty. 


§  146.  Independence  of  Juries. —  An  independent  man 
is  a  man  who  cannot  be  depended  mDon.  An  independent 
jury  multiplies  the  uncertainty  by  twelve.  The  institution, 
although  one  of  the  greatest  safeguards  of  English  and 
American  liberty,  often  fails  in  the  rendition  of  exact 
justice.  Its  chief  defect  is  indissolubly  connected  with  its 
greatest  merit.  Its  uncertainty  is  the  direct  consequence 
of  its  independence.  The  latter  is  the  jewel  which  has 
been  prized  a  thousand  years  ;  the  former  is  its  foil,  which 
has  always  been  tolerated  as  its  inseparable  adjunct.  It  is 
undeniable  that  a  learned  and  well-trained  judge  less  fre- 
quently errs  in  deciding  questions  of  fact,  than  do  even  the 
most  intelligent  dozen  good  and  lawful  men  that  ever  were 
impaneled ;  but  it  would  be  a  great  mistake,  nevertheless, 
to  substitute  irrevocably,  the  permanent  and  professional 
for  the  occasional  arbiter.  In  ordinary  times  the  change 
would  work  no  mischief,  but  at  every  period  of  disorder 
and  commotion  the  independence  of  the  |jury  of  one's 
peers  becomes  an  invaluable  security  for  life,  liberty  and 
property. 

In  considering  the  merits  and  defects  of  the  system  in  its 
every-day  operation,  the^tirst  and^most^^striking  point  in  its 
favor  is  that  juries  are  unstained  ^by  corruption,  and  that 
whatever  else  may  cause  a  failure  of  justice  at  their^hands^ 


174  HINTS  ON  ADVOCACY. 

it  is  never  their  personal  and  individual  interests.  They  are 
excerpts  from  the  mass  of  the  people,  and,  unless  selected  in 
some  very  defective  manner,  fairly  represent  the  average 
honesty  and  intelligence  of  the  community.  When  they  fail 
to  do  justice,  it  is  because  of  the  want  of  adaptation  of  their 
faculties  to  the  abnormal  exercises  sometimes  required  of 
them,  or  of  prepossessions  already  existing  in  their  minds,  or 
the  effect  of  the  address  or  dexterity  of  counsel.  Practically, 
this  evil  is  neutralized  by  the  advisory  instructions  of  the 
])cnch  and  the  facilities  for  new  trials  afforded  by  the  law. 
With  all  its  faults,  however,  the  institution  as  it  exists  in  Eng- 
land and  America  is  the  best  and  safest  means  ever  yet  devised 
by  the  wit  of  man  to  ascertain  the  truth,  in  matters  of  fact, 
for  judicial  purposes. 

§  147.  Peremptory  Challenges. —  In  civil  cases  the  advo- 
cate has  usually,  in  practice,  little  part  in  the  selection  of 
juries,  though  there  are  provisions  for  special  juries  in  some 
of  the  States,  and  should  be  everywhere.  In  the  graver  crim- 
inal cases,  however,  the  defendant  has  a  negative  voice  in  the 
selection  of  the  arl)iters  of  his  destiny.  It  therefore  becomes 
a  very  grave  question,  involving  a  heavy  responsibility,  how 
the  counsel  can  exercise  the  right  of  peremptory  challenge  to 
the  greatest  advantage  of  his  client.  You  should  cautiously 
husband  this  prerogative.  Take  care  that  you  have  the 
jury-list  in  good  time,  study  it,  and  challenge  "  for  cause," 
whenever  your  information  indicates  that  by  that  means 
you  can  g«t  rid  of  an  obnoxious  juror.  Thus  you  have 
an  additional  peremptory  challenge  to  expend  upon  the 
remainder  of  the  venire  or  the  talesmen.  Object  to  all 
men  whom  you  have  reason  to  believe  subject  to  strong 
adverse  influences  in  relation  to  the  offense  on  trial.  If,  in  a 
murder  case,  there  is  presented  as  a  juror  a  man  whose  son 
or  brother  has  been  killed,  even  long  ago,  and  the  homicide 
escaped  punishment  —  have  none  of  him.  Naturally,  he  is 
unconsciously  prejudiced.  In  a  trial  for  arson,  reject  one 
who  has  ever  suffered  loss  from  incendiary  fires.  And  so 
with  all  similar  cases.    As  a  general  rule,  challenge  all  nota- 


PEREMPTORY  CHALLENGES.  175 

bly  hard-headed,  obstinate  men  ;  for  they  are  bundles  of 
prejudices,  and  incapable  of  evolving  an  impartial  opinion. 
Men  of  this  stamp  are  too  ready  to  assume  responsibility, 
and  are  not  amenable  to  the  appeals  for  caution  and  delib- 
erate action  which  are  often  effectual  with  those,  of  less 
self-sufficient  temperament.  When  a  man  of  good  charac- 
ter has  so  far  fallen  under  suspicion  that  a  true  bill  has  been 
found  against  him,  and  he  has  actually  been  arraigned,  you 
may  be  sure  that  if  he  is  innocent,  there  have  been  very  foul 
practices  on  the  part  of  the  prosecution,  or  else  an  extra- 
ordinary combination  of  adverse  circumstances  ;  and  in  such 
a  case  you  will  need  a  jury  not  only  fair,  but  highly  intelli- 
gent and  respectable.  Such  a  jury  can,  with  your  assistance, 
unravel  the  mysteries  of  the  case,  and  will  acquit  your  client  if 
he  is  innocent,  but  will  certainly  convict  him  if  he  is  guilty — 
for  the  solid  man  of  business,  pater-familias,  church-mem- 
ber, of  correct  habits,  is  apt  to  be  a  just  and  stern  juror, 
and  has  a  vivid  sense  of  what  is  due  to  the  interests  of  soci- 
ety, and  a  perfect  willingness  to  j^romote  them  by  a  strict 
discharge  of  his  duty.  In  all  questions  in  which  character 
is  involved,  the  jurors  should  be  selected  from  men  of  gen- 
uine respectability,  for  these  fine  issues  are  not  likely  to  be 
fully  appreciated  by  those  less  worthily  endowed. 

§  148.  Direct,  Plain,  Simple. — Juries  most  readily  ac- 
cept the  direct  and  obvious  solution  of  the  problems  sub- 
mitted to  them,  that  which  requires  only  a  few  simple 
deductions  and  inferences  to  arrive  at  a  conclusion.  They 
will  not  elaborate  additional  elements  of  decision,  or  follow 
a  complicated  line  of  argument  to  its  logical  result.  They 
are  intolerant  of  explanations  and  qualifications,  and  the 
advocate  whose  safety  lies  in  explaining  away  simple  and 
stubborn  facts  has  an  arduous  task  before  him.  A  politi- 
cian many  years  ago  had  an  ugly  record  (politically  speak- 
ing) on  the  Annexation  of  Texas  question.  He  was  a 
candidate  for  office  and  Avas  beaten.  A  political  friend  ac- 
counted for  his  defeat  thus:  "  The  whole  of  his  speeches 
was  required  to  explain  his  course  on  the  Texas  question  — 


176  MINTS  ON  Al)VOCA(  Y. 

and  then  it  was  as  clear  as  mud."  The  people  will  not 
submit  to  a  long  string  of  explanations  from  the  politician. 
The  jury,  which  is  an  epitome  of  the  people,  requires  in 
like  manner  of  the  advocate  a  })lain,  simple,  direct  case, 
clearly  stated  and  fairly  argued.  In  those  words  "simple," 
"  direct,"  "  plain,"  is  to  be  found  the  key  to  most  verdicts. 
In  their  ordinar}'^  avocations  jurymen  are  accustomed  to 
deal  only  with  simple  propositions,  and  when  it  becomes 
necessary  to  investigate  a  complicated  transaction,  they  ap- 
proach it  with  repugnance,  and  will  look  with  favor  upon 
almost  any  hypothesis  which  involves  a  simple  solution.  In 
the  human  body  are  muscles  which  are  habitually  unused,  and 
when  occasion  brings  them  into  play,  the  exercise  is  painful 
and  laborious.  The  juryman's  mental  muscles,  so  to  speak, 
arc,  for  want  of  hal)itual  use,  inadequate  to  the  task  of  solv- 
ing complicated  and  involved  questions.  The  mental  muscles 
of  the  advocate,  on  the  contrary,  are  thoroughly  trained  to 
that  special  end  ;  it  is  his  duty  to  analyze,  sift,  simplify 
and  present  to  the  jury  the  facts  of  the  case,  divested,  as  far 
as  possible,  of  all  complexity — in  such  a  shape,  indeed,  that 
they  become  amenable  to  the  common  sense  which  is  always 
held  to  be  the  special  faculty  of  the  jury. 

§  149.  Hoiv  to  Address  a  Jury. —  In  addressing  a  jury, 
an  advocate's  manner  should  be  plain,  straightforward,  and, 
above  all  things,  natural.  Make  no  effort  at  fine  effects  ;  for 
appropriate  gesticulation  is  unconsciously  suggested  by  the 
words  as  they  are  spoken  ;  and  felicitous  illustration,  flashes 
of  eloquence,  emanate  naturally  from  the  mind  surcharged 
with  the  electricity  of  the  subject.  Strive  to  present  your 
case,  clothed  in  apt  words,  in  such  a  manner  as  will  keep  up 
continuous  interest  in  the  juror.  It  is  not  absolutely  essential 
that  your  speech  be  wise  or  even  witty — of  course,  within 
reasonable  limits,  the  wiser  and  the  wittier,  the  better — but 
it  must  address  itself  to  the  juror,  enlist  his  sympathies, 
gently  exercise  his  intelligence,  and  titillate  his  imagination. 
If  too  deep  and  technical  for  him,  he  revolts  at  once;  if 
too  shallow  and  frivolous — if  you  give  too  loose  a  rein  to 


INEQUITABLE  DEMANDS  OU  DEFENSES.  177 

your  wit,  or  mistake  for  that  adiiiirahlo  but  dangerous  and 
very  indefinite  qualit_y,  mere  animal  spirits  and  liilarious 
antics,  you  lose  your  hold,  and  fall  a  victim  to  your  indis- 
cretion. Indulge  in  no  digression,  unless  you  are  quite  sure 
that  you  are  escorted  on  your  excursion  by  the  whole  panel. 
Steadfastly  deny  yourself  all  exercise  upon  your  individual 
hobbies,  and  all  displays  of  personal  or  special  erudition, 
which  may  even  possibly  prove  "  caviare  to  the  general," 
and  by  all  means,  at  all  hazards,  at  any  sacrifice,  you  must 
never,  never,  be  dull.  If  the  thread  of  interest  is  once 
broken,  it  is  nevermore  to  be  restored,  hiatus  valde  de- 
fiendus  —  a  solution  of  continuity  past  all  surgery.  Rather 
than  risk  this  catastrophe,  an  advocate  should  sacri- 
fice all  personal  considerations,  individual  idiosyncracies, 
hobbies,  crotchets  and  caprices  —  everything,  in  short,  save 
truth  and  duty,  to  his  stern  determination  to  be  heard  and 
to  win  his  case. 

Cultivate  a  lucid,  succinct,  vigorous  style  ;  eschew  invo- 
lutions ;  for  although  we  have  the  witty  rejoinder  of 
William  Evarts  that  "  the  only  people  who  ought  to  object 
to  lonsf  sentences  are  the  criminals  who  deserve  them," 
still  verbal  complications  do  not  commend  themselves  to  the 
j^iry. 

§  150.  Inequitable  Demayids  or  Defenses. — All  jurors  are 
averse  to  captious,  inequitable  or  purely  technical  positions, 
and  when  a  case  stands  solely  on  such  grounds,  they  yield 
a  verdict  onl}^  to  positive  and  peremptory  instructions  from 
the  bench.  Whenever,  therefore,  that  kind  of  argument 
can  safely  be  sent  to  the  rear,  and  more  meritorious  grounds 
relied  on,  it  is  best  to  do  so.  Where  a  fairly  good  case,  for 
example,  is  supplemented  by  the  statute  of  limitations,  or  a 
plea  of  usury,  do  not  obtrude  these  obnoxious  and  unpopu- 
lar defenses  ;  do  not  abandon  them  altogether,  of  course, 
])ut  press  the  more  morally  equitable  positions,  and  let  that 
of  prescription  or  usury  take  a  merely  auxiliary  and  second- 
ary place,  and  be  in  effect  brought  forward  in  the  instruc- 
tions of  the  court. 

(12) 


178  HINTS  ON   ADVOCACY. 

§  151.  Frj'Uni). — 111  eiidoiivoriiig  to  enlist  the  indignation 
or  the  conipiission  of  the  jury,  an  advocute  should  make  sure 
that  he  has  a  sound  sul)stratunl  of  fact  upon  which  to  build 
his  superstructure  of  feeling.  Juries  are,  in  these  matters, 
not  unlike  the  average  Englislnnan  as  descril)ed  by  Sydney 
Smitli.  In  appealing  to  him  in  a  case  of  distress  for  a 
charity,  you  may  vainly  ply  your  most  ardent  a[)peals  to  his 
benevolence,  and  portray  the  distress  and  suffering  of  the 
proposed  ol)jects  of  his  bounty  in  the  most  heart-rending 
style.  You  effect  nothing.  He  is  metiiodical  and  accu- 
rate ;  he  re(iuires  the  day  of  the  month  and  the  year  of 
the  Lord,  the  certificate  of  the  parson  of  the  parish  and  the 
attestation  of  two  substantial  householders.  When  he  has 
these  affecting  facts,  John  liull  can  hold  out  no  longer  ;  he 
yields,  he  blubbers,  he  subscribes. 

§  152.  Appeal  to  Sevse  of  Duty .  — Impress  the  jury 
with  an  appreciation  of  your  earnestness.  They  will  re- 
spond with  a  like  feeling,  and  this  is  highly  desirable 
in  view  of  the  necessity  of  imbuing  them  with  a  realiza- 
tion of  their  responsibility  and  the  importance  of  their 
functions.  In  this  matter  of  earnestness,  the  spurious  is 
readily  detected.  If  you  do  not  feel  what  you  are  saying, 
the  fact  will   become   apparent  —  it  will   be  divined,  if  not 

seen ; 

"Pleads  he  in  canu'stV     Look  upon  his  face— 
His  eyes  do  drop  no  tears,  liis  prayeis  areia  jest." 

An  earnest  appeal  to  the  sense  of  duty  and  obligation  is 
effective  even  with  men  who  would  not  readily  be  suspected 
of  delicate  susceptibilities  ;  for  conscience,  however  dwarfed 
and  dormant,  is  inherent  in  human  nature.  Avail  yourself 
of  this,  and  strive  to  impress  the  jury  with  a  due  regard  for 
the  <yravity,  and,  in  extreme  cases,  the  solemnity  of  the  crisis, 
and  especially  with  an  appreciation  of  their  duty  and  great 
responsibility. 


THE  POSTMAN  S  CASE. 


179 


CHAPTER  XIV.— Illustrative  Cases. 


SECTION. 

153.  The  Postman's  Case. 

154.  The  Policeman\s  Case. 


SECTION. 

155.  The  Bookbinder's  Case. 
156    A  Remarkable  Escape. 


§  153.  The  Postman's  Case. 

A  postman  was  indicted  for  stealing  a  shilling.  A  second  indictment 
charged  liiin  with  obtaining  it  by  false  pretenses  with  intent  to  defrand. 
This  was  the  charge  upon  which  he  was  tried. 

Evidence  :  He  received  as  a  letter-carrier,  on  the  10th  of  April,  from 
the  post-office  a  letter  to  deliver  on  his  ordinary  round.  It  was  directed 
•■Miss  Brown,  No.  50,  Grayham  Street.'"  The  letter  was  a  soldier'e  letter 
from  Zululand,  and  Avas  entitled  to  come  post  free.  The  prisoner  in- 
quired of  a  Mrs.  Smith  where  Miss  Bi-own  lived,  as  she  had  removed 
from  1^0.  50.  Mrs.  Smith  would  show  him.  The  prisoner  said  "there  is 
a  shilling  to  pay."  Some  one,  but  not  the  post-office  authorities,  had 
marked  the  letter  1  s.  in  pencil;  evidence  tended  to  prove  prisoner  had 
marked  it  himself. 

Mrs.  Smith  took  the  prisoner  to  a  Mrs.  Jones,  and  said  that  was  where 
Miss  Brown  had  removed  to.  On  arriving,  Mrs.  Smith  said  to  Mrs. 
Jones,  '•  here  is  a  letter  for  Miss  Brown,  and  there  is  a  shilling  to  pay," 
whereupon  the  prisoner  handed  in  the  letter,  and  received  the  shilling; 
Mrs.  .Tones  remarking  that  Miss  Brown  would  be  only  too  glad  to  pay 
the  shilling,  for  "  the  letter  was  one  she  was  expecting  from  her  brother 
from  the  wars."  Mrs.  Smith  said  jocularly,  "  let  us  spend  the  shilling." 
'•  Xo,"  answered  the  conscientious  postman,  "  it  does  not  belong  to  me, 
I  have  got  to  pay  it  in,'"  Both  these  witnesses  knew  the  prisoner;  and 
the  would-be  spendthrift,  Smith,  knew  him  well,  as  would  seem  from 
hei'  familiarity. 

A  day  or  two  after,  the  prisoner  was  on  his  reund,  and  again  saw  the 
witnesses,  whom  one  might  not  irreverently  call  the  '"merry  wives,"  and 
Miss  Brown.  Mrs.  Smith  said,  "this  is  the  postman  who  brought  that 
letter  from  Zululand."  "Yes,"  answered  the  prisoner,  "and  if  it  hadn't 
been  for  me,  she  would  never  have  had  it  at  all,  for  it  had  been  kicking 
about  for  several  days."     The  prisoner  was  identified  by  several  wit- 


180  HINTS  ON  ADVOCACY." 

nesses.  by  :i  wlioli'  poiuilatidii  one  might  say.  It  \sa>;  ji  ;4()V('nmienit 
prosecution. 

Two  months  aftrr.  in  constMiuence  of  Miss  Bniwn  rcporlins  to  tlie 
post-otlice  iuitlioritios  tlie  circuinstaiR-es  above' stated,  a  h'tter  was  ad- 
dressed  by  them  to  the  prisoner,  eallinj^  his  attention  to  the  facts,  and 
askino-for  an  exphuiation.  TIk'  i)iisoner  replied  (and  his  letter  was  in 
evidence),  that,  undoubleilly.  lie  must  have  been  on  that  district  at  the 
time,  and  on  thi'  particular  deli  very  when  the  letter  was  given  out,  but 
he  had  no  recollection  of  ii  at  ail.  and  certainly  never  received  the  shillmg; 
lie  ^--ave  the  lie  direct  to  that,  and  that  was  the  awkward  i)oint  in  the 
case.  The  post-ollice  sheets  were  produced  to  jtrove  the  non-payment 
over  by  the  jjrisoner. 

This  was  the  case  for  the  pro.secution,  except  the  witnesses  to  iden- 
tifv  and  certainly.onpaper.it  does  look  a  somewhat  hopeless  one  to- 

defend. 

The  counsel  for  the  defense  commenced  cross-examining  as  to  iden 
tity;  the  prosecution  having  taken  so  much  trouble,  and  called  so  many 
■witnesses  to  prove  it,  it  was  worth  disputing,  as  you  will  see.      It  was 
made  the  chief  point  on  behalf  of  the  crown.     If  they  crttablished  that, 
all  other  defenses  must  be  hopeless  —  so  they  established  it. 

It  was  very  curious  that,  the  point,  fixed  upon  by  the  prosecution  as 
their  strength,  was  thought  by  them  the  wrong  point  to  attack  on  the 
part  of  the  defense.  But  it  was  cross-examined,  so  far  as  one  or  two 
-witnesses  were  concerned,  and  then  dropped. 

The  points  elicited  in  cross-examination  were  these  :— 

1.  The  letter  had  been  given  out  by  the  post-oliice  authorities  on  the- 
morning  in  question  without  being  stamped.  This  was  an  oversight  on 
their  part. 

2.  There  was  another  oversight  on  the  part  of  the  authorities  at  another 
post-office  with  regaid  to  the  same  letter. 

'.i.  There  was  nothing  to  show  that  it  was  a  soldier's  letter,  and  enti- 
tled to  come  free. 

4.  The  prisoner  might,  under  the  circumstances,  have  thought  a  shil- 
ling was  due  upon  it.  which  would  be  the  postage  from  Zululand. 

5.  If  he  had  charged  a  shilling,  and  then  paid  it  over,  it  would,  although 
irregular,  liave  been  the  right  and  proper  thing  to  do. 

6.  The  sheet  for  the  11th  of  April  was  not  produced,  and  although  the 
shilling  did  not  appear  on  the  pay-sheet  of  the  10th,  the  witness  would 
not  absolutely  swear  it  was  never  paid  in. 

(Probabilities,  however,  strong  the  other  way.  inasmuch  as  the  pris- 
oner said  he  never  had  it.) 

7.  The  post-office  was  sometimes  guilty  of  oversight>.  and  the  entering 
the  shilling  might  have  been  one. 

8.  The  prisoner  might  by  an  oversight  have  omitted  to  pay  it  over. 

9.  His  attention  was  not  called  to  the  circumstance  till  two  months^ 
after. 


tiie^oliceman's  case.  181 

10.  Multitudes  of  letters,  some  requiring  payment,  others  not,  had 
passed  through  his  hands  since  that  time. 

11.  His  frank  avowal  tliat  he  must  have  received  the  letter,  but  did 
not  remember  the  circumstances. 

The  learned  counsel  for  tlie  prosecution  was.  perhaps,  justified  in 
thinking,  from  the  apparently  main  line  of  cross-examination,  that  iden- 
tity was  tlve  only  defense,  and  he  accordingly  made  it  the  principal 
subject  of  comment  in  his  summing-up.  It  was,  however,  stated  on  be- 
half of  the  prisoner,  that  there  was  no  question  as  to  identity,  as  he 
himself  had  admitted  it  in  his  own  handwriting.  The  real  question  was, 
whether  the  prisoner,  who  bore  the  most  excellent  character,  and  had 
been  in  the  service  of  the  post-office  for  ten  years,  had  received  the 
shilling  loith  intent  to  defraud,  or  whether  he  had  received  it  and  then 
had  forgotten  to  pay  it  over,  and  forgotten  indeed  all  about  it;  or 
whether  he  may  not  even  have  paid  it  over,  and  its  entry  be  on  some 
other  sheet.  It  was  not  probable  that  a  young  man  with  so  valuable  a 
character  would  sell  it  for  a  shilling. 

Witnesses  to  the  young  man's  goodness  were  called,  and  the  jury  with- 
out hesitation  acquitted.  Without  saying  tliat  the  counsel  for  the  pros- 
ecution were  wrong  in  the  line  they  took,  it  is  just  within  the  range  of 
possibility  that  if  the  cross-examination  had  not  been  to  identify  at  all, 
that  matter  would  have  been  taken  as  proved  in  the  summing-up.  The 
eloquence  would  have  been  expended  on  those  minor  incidents  and 
trifling  theories  which  looked  so  insignificant  while  they  were  being 
blown  about  by  a  breezy  cross-examination,  but  which  took  root  at  last, 
nevertheless,  and  grew  to  be  such  great  probabilities  under  the  ripening 
influence  of  a  warm  and  genial  speech.  And  then  character  lit  them  all 
up  with  such  pleasant  sunshine,  that  the  jury  could  never  look  on  the 
dungeon  shadows  again  —  and  so  acquitted. 

§  154.   The  Policeman's  Case. 

The  next  case  was  that  of  a  policeman  who  was  indicted  for  stealing 
the  sum  of  nine  shillings  and  tenpence  halfpenny.  The  facts  deposed  to 
by  the  witnesses  were  as  follows : — In  company  with  a  sergeant  of  the 

Regiment,  he  had  arrfested  a  deserter,  and  after  delivering  him  up 

to  the  authorities,  went  into  a  public-house,  and  called  for  two  glasses 
of  ale.  On  being  served,  he  paid  three  penny  pieces  to  the  landlad\\  At 
this  time  a  man,  whom  I  will  name  Lounger,  was  standing  with  his  elbow 
leaning  on  the  counter,  and  almost  facing  the  prisoner  and  the  sergeant. 
He  also  had  some  ale  before  him.  While  these  persons  were  in  front  of 
the  bar,  a  woman  came  in,  called  for  a  glass  of  ale,  and  placed  on  the 
counter  a  half-sovereign.  The  landladj^  took  the  coin  into  a  parlor  be- 
hind the  bar  for  the  purpose  of  getting  change.  Meanwhile  the  woman 
took  her  ale,  and  went  into  the  room  on  the  opposite  side  of  the  bar. 
After  a  minute  or  so  had  elapsed,  the  landlady  returned  with  the  change 
(the  sum  in  question),  consistfng  of  silver  and  copper,  and  placed  it  on 
the  counter  between  th..  policeman  and  sergeant,  where  it  lay  for  about 


182  HINTS  ON  ADVOCACY. 

five  miimtes.  Tlu'  Uindhicly.  who  was  a  respeotabli'  \v<Miiaii,  ami  unim- 
peachable as  to  character,  swore  that  after  the  h^pse  of  that  time  she  saw 
the  policeman  take  up  the  change  and  put  it  in  his  pocket.  She  made 
no  remark  as  he  did  so,  because  she  had  forgotten  whose  change  it  was. 
The  policeman  and  the  sergeant  then  quickly  tinlshed  their  ale.  and  went 
away.  In  about  a  minute  or  so,  the  woman  to  whom  it  belonged  came 
to  the  counter,  and  asked  for  her  money.  Upon  that,  the  landUdy,  im- 
mediately calling  to  mind  the  (.•ircumstances.  exclaimed:  "•Why.  the 
policeman  has  got  it!  "  Lounger,  then  aroused  in  the  liveliness  of  the 
situation,  said:    "Yes  he  has;   I  saw  him  take  it." 

Upon  this  they  all  went  to  the  door,  and  the  sergeant,  who  lived  in  the 
barracks  nearly  opposite,  was  not  in  sight;  but  the  policeman  was  seen 
going  along  some  hundred  yards  from  the  house.  Lounger  was  then 
told  by  the  landlady  to  go  and  bring  him  back. 

Instead  of  Lounger  going  to  the  police-constable,  it  appeared  that  he 
■went  to  the  sergeant.  And  the  landlady,  before  the  magistrates,  had 
said  no  more  than  that  she  had  sent  him  to  the  prisoner,  but  did  not  see 
him  again  till  nearly  nine  o'clock  at  night.  (This  point  should  be 
borne  in  mind.)  Lounger's  evidence,  in  addition  to  the  evidence  that 
he  saw  the  money  taken,  was  that  he  went  to  the  sergeant  and  then  re- 
turned to  the  public-house  and  afterwards  went  after  the  prisoner,  whom 
he  saw  at  the  police  station;  that  he  gave  information  against  him,  upon 
which  he  was  taken  into  custody.  The  sergeant  was  called  and  said 
that  he  saw  the  money  lying  on  the  counter  a  minute  before  he  and  the 
prisoner  left  the  house.     He  could  not  sa>j  if  it  icas  there  lohen  they  left. 

This  was  the  case  for  the  prosecution.  Upon  this  evidence  it  looks 
somewhat  hopeless.  If  either  of  the  two  witnesses,  the  landlady  or 
Lounger,  could  be  believed,  there  was  no  answer  to  be  made. 

There  were  no  witnesses  to  fact  for  the  prisoner.  The  defense  there- 
fore must  rest  upon  the  cross-examination  and  the  improbability  of  the 
story  being  true,  arising  mainly  from  the  good  cliaracter  of  the  person 
charged. 

I  will  now  ^tate  the  points  made  in  cross-examination,  and  the  reader 
will  do  well  to  remember  the  exact  facts  narrated  above,  as  given  in  the 
evidence  in-chief. 

1st.  The  woman  who  had  given  the  half  sovereign  was  cross-exam- 
ined : 

Q.  "  Who  was  in  the  bar  when  you  wentin?  "  A.  "  No  one,  I  believe." 

Q.  "You  placed  the  half-sovereign  on  the  counter?  "     A.  "  I  did." 

This  was  the  whole  of  her  evidence. 

2nd.  The  next  witness  cross-examined  was  the  landlady. 

Q.  "  How  long  is  the  counter?"     A.  "  Five  feet."' 

Q.  "Who  came  into  the  house  first?"     A.  "Lounger." 

Q.  "  Who  next?  "    A.  "  The  two  men." 

Q.  "And  then?"     A.  -'The  woman." 

Q.  "  Did  the  men  come  to  the  counter  as  soon  as  they  came  in?  "  A. 
"Yes." 


THE  P0LICEM\X'S  CASE.  183 

The  Witness:  "The  woman  may  not  have  seen  the  in«n  when  she 
ciune  in." 

Q.  "  Why  do  you  say  that?  "    No  answer. 

Q.  "  Do  you  linow  what  the  last  witness  has  sworn?'"  A.  "She  may 
not  have  seen  them." 

This  observation  on  the  part  of  the  witne^^s  doubtless  arose  from  the 
fact  that  she  had  talked  the  matt«r  over  and  knew  she  was  contradicted 
upon  the  depositions.  It  was  of  course  not  pursued  on  behalf  of  the 
prisoner.  It  was  a  point  made,  and  beino-  taken  in  connection  with  the 
want  of  memory  of  the  prosecutrix,  as  to  whom  the  chan;xe  belonged, 
was  not  without  value. 

Q.  "Were  there  glasses  on  the  counter,  between  you  and  the  pris- 
oner?"    A.  "There  were." 

Q.  "  And  the  handles  of  the  beer -engine  ?  "    A.  "Yes."" 

Q.  "Six  of  them?"     A.  "Yes." 

Q.  "  They  would  reach  two-thirds  of  the  way  along  the  middle  of  the 
counter?"    A.  "Yes." 

Q.  "  Did  you  leave  the  bar  after  the  prisoner  and  the  sergeant  were 
gone?"     A.  "I  did." 

Q.  "  Who  was  left?  "     A.  "  Lounger." 

Q.  "And  no  one  else?  "     A.  "No  one." 

Q.  "Were  you  busy  serving  other  customers  in  other  parts  of  the 
house,  while  the  money  was  on  the  counter?"    A.  "I  was." 

Here  I  should  pause  a  moment,  to  call  the  reader's  attention  to  a 
somewhat  common  blunder  which  might  have  been  made  by  a  very  in- 
experienced counsel.  The  temptation  to  ask  the  following  question 
would  have  been  very  great  to  beginners : 

"  Might  not  some  one  else  have  taken  it?'''' 

The  answer  would  have  been  "No I  "  to  a  certainty,  with  much  em- 
])hasis.  Tills  was  matter  of  argument  for  the  jury,  and  unless  you  cut 
the  ground  away  from  you  by  putting  such  a  question,  there  would  arise 
in  their  minds  a  strong  inference  tliat  it  miglit  be  so. 

The  next  question  was : 

Q,  "  Did  you  send  Lounger  after  tlie  prisoner?  "  A.  "  I  sent  him  to 
the  sergeant." 

Q.  "  Is  that  the  same  as  you  deposed  before  the  magistrate?"  A. 
"  It  is." 

Depositions  produced;  found  to  be  not  the  same.  It  was  there  stated 
in  accordance  with  last  question,  which  makes  something  more  than  a 
slight  discrepancy;  the  effect  made  on  the  jury  being  not  unimportant. 

Q.  "  That  is  what  you  swore?  "  A.  "  It  is;  but  I  sent  him  to  the  ser- 
geant, not  to  the  prisoner." 

Here  is  not  only  a  contradiction,  but  an  improbabi  Hy,  as  well  as  an 
unreasonable  piece  of  conduct,  all  which  the  jur\  iiocice  as  becomes 
them. 

Q.  "  Did  you  authorize  Lounger  to  give  the  policen.;ui  hito  custody?" 
Question  put  in  a  tone  that  makes  her  afraid  of  the  consequences,  so  she 


184  HINTS  ON  ADVOCACV. 

answers;  wiili  crjiisiilfnihlt'  emphasis  and  no  little  indignation:  A. 
••  Certainly  not!  '" 

Q.  "Nor  to  take  any  proeeeclings  against  the  inan'r  "  A.  "  I  did  not  1 1"" 
with  at  lea<t  two  notes  of  indignation. 

I.oupger  is  next  cross-examined,  and  states  tiiat  lie  was  sent  to  the 
sergeant,  and  not  to  tlie  prisoner. 

Asketl  what  the  latter  did  with  the  money  alter  he  had  taken  it  from 
the  eonnier.  he  said :— ••  llow  do  I  know?  He  might  ha"  i)Ut  it  in  his  'at 
for  what  I  kno\Y.'' 

This  was  a  foolisli  answer  for  the  prosc^eiition,  but  1  am  inelined  to 
think  that  one  or  two  stupid-looking  qnestions  had  worked  Lounger  into 
giving  a  stupid  answer,  as  will  sometimes  happen. 

The  serge;  nt  was  cros.'-examined  simply  as  follows : 

Q.  '•  You  have  In-en  in  the  army  many  years?''    A.  "  Ten." 

t^.  ••  And  have  risen  to  the  position  of  sergtmnty''     A.  ''Yes." 

Q,  ••  Were  yon  on  duty  on  this  day  with  the  prisoner,  in  apprehending 
a  deserteri' ■■    A.  "Yes." 

Q.  "You  stood  elose  to  him  and  were  talking  to  him  while  the  change 
MRS  ly'ngon  the  eonnt<  r?  "     A.  "  1  did." 

Q.  "  Did  he  toiidi  ii'r""     A.  "I  never  saw  him." 

(J.  "Could  he  liave  taken  it  up  without  you  seeing  him?'"  A.  "He 
c  )uld  not."" 

Then  came  th(;  character  of  the  prisonei'.  not  exhibited  sensationally 
like  a  dancing  cieature  on  a  tight-rope  with  a  balance-pole,  but  in  a 
comm()n-i)lace  manner  und  in  every-day  costume,  arranging  as  it  were 
the  probabilities  and  the  improbabilities;  not  attemj)ting  to  captivate 
the  weakness  of  the  jury,  but  appealing  oidy  to  their  good  common 
sense,  which  good  common  sense,  after  sliort  deliberation,  returned  a 
verdict  of  not  (juiltij. 

It  was  said  afterwards  by  the  chief  authority  of  the  police  in  the 
county,  that  his  belief  w-as  that  Lounger  did  not  go  to  the  policeman  in 
the  first  instance,  as  stated  in  the  original  depositions,  for  fear  the 
Ijoliceman  should  apprehend  him  on  the  same  charge,  which  perhaps 
would  have  been  awkward  for  TiOimger.  Be  that  as  it  may,  there  was 
immense  importance  in  tiiis  discrepancy  between  the  statements,  as  it 
led  among  other  matters  to  the  successfid  result  which  followed. 

§   15.").   Thk  Bookbinder's  Case. 

A  highly  respected  tradesman,  whom  I  will  call  Marks,  was  indicted 
with  a  man  herein  mimed  Pincher,  for  stealing  and  receiving  eighty 
tablets,  whicli  were  the  titles  of  books  to  be  affixed  to  the  covers,  and 
about  twenty  books  of  gold  leaf.  The  prosecutor  was  in  a  large  way  of 
business  in  the  sam<'  trade  as  Marks,  and  Tincher  was  in  his  employ- 
ment. The  prosecutor's  evidence  was  to  this  effect: — Ten  of  the  tablets 
I  bought  at  a  certain  s;ile.  'i'iiey  have  a  i)ecurrir  mark.  I  l)0Ught  all 
that  were  in  stock.  Those  produced  are  som  '  of  tliem.  The  gold-leaf 
books  (three  oi-  four)  produced, Lad  a  privatf  marknuule  by  a  pin;  it  was 


THE  BOOKBINDER  S  CASE. 


185 


made  because  we  were  being  robbed.  Several  other  tablets  were  sworn 
to  as  his,  because  they  had  been  stamped  loith  a  tool  which  had  a  particular 
Jlaw  in  it.  None  had  ever  been  sold,  and  the  tool  was  produced. 
Pincher  had  pleaded  guilty  to  stealing  the  whole  of  the  articles,  and 
from  information  given  by  him  a  detective  went  to  Marks'  house. 
Upon  a  board  at  the  prosecutor's  house  he  had  found  the  words  of  a 
label  in  gold  leaf,  which  the  prisoner,  Marks,  was  using  for  the  completion 
of  an  order.  On  the  detective  going  into  the  prisoner's  house,  he  said : 
-  I  have  come  to  see  some  books  which  you  are  binding  and  lettering 
for  the  A.  B.  C.  Board."  "  What  books?  "  exclaimed  Marks;  '•  I  have 
no  books."  The  detective  then  said,  "  As  you  have  given  nie  that  an- 
swer, I  shall  search  your  house,"  and  thereupon  proceeded  to  do  so. 
At  this  time  a  person  came  in  to  see  Marks,  and  the  latter  invited  him 
to  go  and  have  a  glass  of  ale.  The  detective  went  with  them,  and  they 
all  returned  together.  "  Then,"  said  the  detective,  "  1  saw  Marks  give 
his  son  a  peculiar  look;  I  told  him  so,  and  stud  I  should  now  examine 
everything  in  the  house."  He  found  a  great  number  of  lettered  tablets, 
among  them  those  produced,  and  sworn  to  by  the  prosecutor  as  having 
been  stamped  with  the  tool  ichich  contained  the  flaw.  On  these  being 
found,  Marks  said,  "Oh,  I  have  had  them  fotir  or  five  years.''  It  Avas 
proved  that  the  tool  had  only  had  the  flaw  in  it  for  Ave  or  six  mouths. 

Found  also  were  other  tablets,  oontainiug  the  particular  mark,  and 
sworn  as  having  been  purchased  by  the  prosecutor.  On  going  into  a 
room  in  the  basement,  the  detective's  attention  was  attracted  to  the  fact 
of  something  burning,  and  on  removing  a  kind  of  tray  which  had  been 
placed  against  the  stove,  a  number  of  gold-leaf  books  were  found  burning; 
gold  was  also  scattered  on  the  floor.  "  What  is  this?  "  inquired  the 
detective.  "  Oh,  we  are  going  to  tea,"  said  one  of  the  women.  "Do 
you  have  gold-leaf  tea?"  asked  the  facetious  officer;  "if  you  do,  it 
must  come  expensive."  He  then  drew  out  from  the  fire  three  or  four 
hooks,  loith  the  private  mark  of  the  prosecutor  on  them,  us,  described.  Marks 
was  then  taken  into  custody. 

This  was  the  evidence  for  the  prosecution;  chain  of  circumstances 
very  strong,  if  it  will  only  bear  the  strain  of  cross-examination. 

First,  the  prosecutor  to  the  following  effect  in  cross-examination : — 
Pineher  worked  for  me  at  binding  and  lettering.  He  was  in  the  habit 
of  using  the  tool  with  the  flaw  in  it.  He  had  no  right  to  work  in  his 
leisure  for  anyone  else;  I  should  have  discharged  him  if  1  had  known 
jr.  But  if  Pincher,  being  a  skilful  workman,  had  worked  for  anyone 
else,  he  might  have  taken  the  tool  aiith  the  flaw  in  it,  and  used  it  on  some 
one  else's  tablets.  This  was,  of  course,  self-evident,  but  worth  empha- 
sizing by  the  mouth  of  the  prosecutor. 

That  was  one  point,  therefore,  tolerably  well  disposed  of,  if  the  jury 
could  be  got  to  take  that  view,  which  the  character  of  the  accused  will 
undoubtedly  persuade  them  to  do,  provided  always  we  can  dispose  of 
the  other  awkward-looking  facts  of  the  ease,  especially  the  gold-leaf 
tea.    The  next  question  was  with  regard  to  the  tablets  marked  with  a 


18f)  HINTS  ON   ADVOCACY. 

particular  mark  (consisting  of  another  flaic  in  onu  of  the  ijolden  lines, 
caus<Hl  by  another  defective  tool).     These,  as  stated,  were  bought  at  a 
sale— at  a  Mr.  Mcrcclith's  sale.    But  on  cross-examination  it  turned  out, 
that  Mr.  Meredith  having  become  bankrupt,  there  was  a  great  sale  of 
the  stock-in-trade,  which  all  resjjectable  l)ookbinders  could  attend,  the 
defendant  among  the  rest;  and  as  for  Die  prosecutor  saying  that  he 
bought  (ill  the  tablets  in  stock  on  that  occasion,  that  did  not  seem  to  sat- 
isfy the  counsel  for  the  defense,  who  implied  by  certain  questions  that 
some  other  goods  of  like  character  and  (piiility.  and  with  the  self-same 
tlaw  in  them,  might  have  been  on  bund  hf/ure  the  sale  by  aurjion.  of 
which  :Mr.  Marks  might  have  purchased  some.     The  prosecutor  himself 
could  not  deny  that  there  was  the  possibility  of  this  being  the  case,  and 
the  jury  seemed  to  think  there  was  prohnhiUtii  as  well.     As  before  ob- 
served, if  possibility,   probability  perhaps.     Another  point,  therefore, 
immensely  in  favor  of  the  prisoner.     Still,  there  was  that  gold-leaf  tea 
yet  to  dispose  of.     The  hooks  irith  the  private  mark  on  them,  and  on  the 
fire!     How  can  you  get  over  that?    Let  us  see.     Was  the  defendant  or 
his  sou  in  the  room  at  the  time  of  the  burning V— The  detective  says  No. 
Had  Marks  ever  been  out  of  the  detective's  custody?    No. 
Clearly  then,  he  had  not  l)iirnl.  nor  given  any  directions  to  burn,  these 
old  books. 

Had  any  woi-d  been   nicutioiu't]  ii|)  to  tliat   uioincnt   about  books  of 
leaf  gold?    No. 

Had  there  been  any  search  for  snoli  books?  Tliere  Iiad  not. 
This  question  must  liave  been  Inised  on  knowledge  of  the  fact,  or  it 
would  have  been  dangerous.  It  is  not  necessary  to  point  out  why.  The 
answer  wos  importatit,  as  it  shows  two  things  clearly  enough  —first,  it 
was  not  in  consequence  of  any  inquiry  for  such  books  that  a  sudden 
alarm  was  raised,  lest  they  should  be  found;  if  it  had  been,  guilty 
knowledge  would  have  been  manifest  enough;  secondly,  the  thief,  who 
had  given  information,  coiild  not  have  told  the  detective  that  he  had 
stolen  any  books  of  gold-leaf. 

Those  two  points  then  are  well  establislied.  Xo  confession  of  stealing 
and  no  fear  of  the  detective  finding  any  stolen  books.  Still  the  private 
mark  and  the  burning.  If  the  mark  stood  alone,  it  would  conclusively 
prove  that  the  books  were  or  had  been  the  property  of  the  prosecutor. 
Does  not  the  burning  show  guilty  knowledge?  Not  if  the  defendant  did 
not  authorize  the  burning.  The  private  mark  then  stands,  as  I  take  it, 
thus:  If  it  can  be  shown  that  the  books  may  have  come  into  the  house 
of  defendant  xcithout  his  kn<,\rledfie.  he  is  clearly  entitled  to  be  acquitted 
on  all  points.  To  show  this,  it  was  opened  and  proved  by  unimpeach- 
able testimony,  that  however  wrong  it  miglit  be,  Piiu-ber,  being  an 
adept  at  labeling  with  gold  leaf,  was  employed  in  the  evening  by 
the  defendant  to  letter  for  him:  further,  that  Pincher  always  brought 
his  own  tools,  and  among  them  the  tool  in  question  with  the  Jlaxo  in  it.  It 
was  proved  that  defendant,  when  his  workmen  wanted  gold-leaf,  would 
give  them  money  to  buy  it.  and  that  sometimes  they  would  fetch  it  nnd  be 


A  REMARKABLE  ESCAPE.  187 

paid  after 5  that  Piucher  was  left  to  work  late  at  night  and  was  given 
money,  as  others  were,  to  get  leaf  if  required.  What  more  was  wanted 
than  this  common-sense  argument,  that  Pincher,  although  having  been 
provided  with  money  to  get  tlie  leaf  with,  stole  the  books  from  his  master, 
Instead  of  purchasing  at  the  proper  place  and  paying  for  them?  If  this 
were  so,  there  would  be  no  guilty  knowledge  on  the  defendant's  part. 

There  remains  then  the  burning  to  get  over;  for  although  it  is  fully 
explained,  that  neither  the  defendant  nor  his  son  was  present  or  could 
have  given  instructions  at  the  time,  it  is  an  awkward  and  suspicious  fact 
and  must  be  answered  somehow. 

The  jury  would  like,  above  all  things,  to  have  that  point  explained,  if 
explained  it  can  be.  About  which  they  do  not  yet  despair,  seeing  how 
guilty  at  one  time  the  otlier  two  points  looked.  They  know  now  that 
innocence  itself  in  the  hands  of  an  active  and  intelligent  officer  may  be 
so  dressed  up,  as  to  look  like  a  very  Gay  Faux  of  iniquity.  There  is  no 
explaining  the  "gold-leaf  tea"  without  witnesses,  so  the  best  witnesses 
are  called,  namelj': — The  workmen  who  made  the  fire  with  the  books. 
These,  examined  apart,  agree  on  three  important  points.  That  they  had 
no  orders  or  intimations  of  any  kind  to  throw  those  old  books  on  the  tire. 
That,  it  being  tea  time,  they  had  to  light  a  fire  to  boil  the  kettle.  That 
the  detective,  in  great  detective  earnestness  and  activity,  rummaged 
about  everywhere,  if  haply  he  might  find  materials  to  work  up  into  a 
case,  and  in  so  rummaging  looked  upon  a  nest  of  shelves,  where  old 
papers  and  rubbish  were,  J2(st  ocer  the  stove,  and  knocked  down  a  small 
quantity  of  the  said  rubbish,  among  it  the  valueless  old  gold-leaf  books 
in  question.  This  was  caught  up  by  one  of  the  women  and  thrown  on 
to  the  tire,  hence  the  blaze!  "  Behold,  how  great  a  matter  a  little  fire 
kindleth!  "  Ti'uly,  it  was  nigh  making  a  very  hell  of  this  man's  life, 
that  small  fire  behind  the  teaboard. 

§   155.   A  Remarkable    Escape. 

Some  yeai's  ago  a  junior  was  engaged  for  the  prosecution  in  a  case  of 
murder,  and  he  certainly  should  have  been  presented  by  the  Royal 
Humane  Society  with  the  medal  which  it  awards  t»  those  who  have  been 
instrumental  in  saving  life.  Whether  their  gift  applies  to  cases  of 
hanging,  as  well  as  drowning,  I  do  not  know. 

The  prisoner  had  comuaitted  a  very  atrocious  murder  ([  tliink  it  was  of 
his  wife),  and  the  main  evidence  against  him  was  the  ^'d>/i)ifj  declaration'''' 
of  his  victim.  Made  in  his  absence,  it  could  only  be  given  in  evidence 
after  proof  that  it  was  made  •■  with  full  consciousness  of  approaching 
death." 

The  medical  man  who  attended  her  was  called  to  prepare  the  way  for 
the  piece  of  evidence  which,  if  given,  would  undoubtedly  have  hanged 
the  prisoner.     The  humane  junior  asked — 

''Did  she /ear  death?"  "No,"  said  the  doctor.  Life-saving  junior 
looked  at  his  attorney,  then  at  his  brief,  then  at  the  witness. 

The  Avitness  was  perfectly  cool,  as  most  doctors  are  in  the  witness-box 


188  HINTS  ON  ADVOCACY. 

ami  kiR'W  well  iJuoiii,'li  wlial  aii-wer  was  n'quireJ.     There  was  not  a  nio- 
lioii,  however,  of  assistance. 

The  iiij^eiuons  young  coiiusel,  however,  repeated  the  queslion.  "Did 
she  fear  deatiiV'"— Answer :  '•  O,  dear  no,  not  at  all  I"  The  judge  :  "You 
<;un  not  piit  in  tlie  statement;  that  will  do,  doctor."  And  you  can  not 
lind  a  verdict  ;Ol'  guilty,  gentlemen,  it  must  be  nianslaugliterl  Man- 
slaughter accordingly  I 

An  instructive  lesson  tills  lo  all  juniors,  to  ask  the  riglit  (luestion;  and 
an  excellent  lesson  to  all  juniors  then  present  (and  to  come,  now  it's 
published)  NOT  to  cross-examine  upon  all  occasions.  One  little  question 
put'by  the  counsel  for  the  defense  would  hare  han(jcd  the  prisoner;  prop- 
erly, no  doubt  (I  am  not  writing  in  the  humane  vein),  but  it  was  not  the 
dHt'j  of  the  counsel  who  defended  the  wretch  to  hang  him. 

Tills  occurred  almost  as  soon  as  I  was  called  to  the  bar,  and  the  scene 
is  as  fresh  to  my  mind  at  this  moment  as  it  was  then.  The  blank  look  on 
tlie  face  of  the  counscd;  the  sagacious  smile  of  the  judge,  who  evidently 
thought  the  right  (luestion  would  be  put  next;  the  quick  perceptive 
o-lance  of  the  witness,  who  stood  leaning  on  tlie  witness-box  with  his 
hands  carelessly  folded,  and  wlio  had  just  tlie  expression  of  face  which 
an  intelligent  being  has  who  asks  you  to  guess  something,  and  flnds  you 
answer  very  near  and  yet  a  very  long  way  off— all  this  is  still  before  me. 
And  I  have  a  vivid  sense  of  the  excitement  I  experienced,  as  I  wondered 
whether  the  right  (lUcstion  would  be  put  or  not.  I  am  sorry  to  confess 
to  a  feeling  of  disappointment  when  it  was  not;  for  according  to  my 
judgment,  if  ever  a  man  deserved  the  full  beuetit  of  a  dying  declaration, 
it  ^vils  the  devil-man  in  the  dock,  who  escaped  only  through  the  blunder 
of  an  inexperienced  advocate. 

'J'he  answer  of  the  doctor  was  undoulytcdly  both  true  and  untrue.  In 
the  letter  it  was  true,  in  i\\Q,me<niinii  ol  the  ([uestion  it  was  untrue;  be- 
cause the  woman  was  uiuiuestionably  ronsdous  of  her  approachuvj  dissolu- 
tion. \\\  a  case,  however,  when;  life  and  death  hang  upon  a  word,  it 
seems  to  me  the  doctor  was  riglit  in  answering  according  to  the  letter. 
Let  us  at  least  be  accurate  and  precise  in  our  language,  where  life  or 
ileath  depend  upon  it. 


APPENDIX. 


I. — Whately  on  Cross-Examination. 

In  his  "  Elements  of  Rhetoric  ""  Archbishop  Whately  lias  attempted  to 
cast  discredit  on  the  great  body  of  a  profession  which  is  as  jealous  of  its 
high  reputation  for  courtesy  and  honor,  as  it  is  deserving  of  it.  At  page 
165  he  says: 

"  In  oral  examination  of  Avitncsses,  a  skilful  cross-examiner  will  often  elicit 
from  a  reluctant  witness  most  important  truths  which  the  witness  is  desirous  of 
concealing  or  disguising.  There  is  another  kind  of  skill,  which  consists  in  so 
alarming,  misleading  or  bewildering  un  honest  witness  as  to  throw  discredit  on 
his  testimony,  or  pervert  the  effect  of  it.  Of  this  kind  of  art,  which  inaj'be  char- 
acterized as  the  most,  or  one  of  the  most,  base  and  depraved  of  all  possible  em- 
ployments of  intellectual  power,  I  shall  only  make  one  further  observation." 

I  pause  here  for  a  moment  to  say  that,  so  far  as  my  experience  of  the 
bar  is  concerned,  and  I  think  it  nuist  be  greater  than  that  of  the  Right 
Reverend  Father  in  God  who  penned  these  words,  a  more  undesei'ved 
slander  against  a  bod}'  of  honoralile  men  was  never  penned  even  bj'  a 
churchman.    He  proceeds  to  say : 

"  I  am  convinced  that  the  most  effectual  mode  of  eliciting  truth  is  quite  differ- 
ent from  that  by  which  an  honest,  simple-minded  witness  is  most  easily  batHed 
and  confused.  I  have  seen  the  expeiiment  tried  of  subjecting  a  witness  to  such 
a  kind  of  cross-exi'mination  by  a  practised  lawyer,  as  would  havp  been,  I  am  con- 
vinced, the  most  likely  to  alarm  and  perplex  many  an  honest  witness  without  any 
effect  in  shalcing  his  testimony." 

According  to  the  archbishop's  views,  the  course  the  most  likely  to 
alarm  and  perplex  an  honest  witness  has  no  effect  upon  the  dishonest 
one.  This  falls  in  witli  my  own  experience  so  far,  but  I  think  it  is  im- 
possible to  "  shake  "  an  honest  witness''  testimony  except  by  the  means  I 
have  endeavored  to  indicate.  But  we  have  only  the  archbishop's  word 
for  the  "  practised  lawyer."     He  then  proceeds  : 

"And  afterwards,  bj' a  totally  opposite  mode  of  examination,  sue :  as  would 
not  have  at  all  perplexed  one  who  was  honestly  telling  the  truth"  (nothing  it 
seems  will  perplex  an  honest  witness  but  an  alarming  style) — "  that  same  wit- 
ness was  drawn  on,  step  by  step,  to  acknowledge  the  utter  falsity  of  the  whole 


rjO  Al'I'KNDIX. 

Gent-rally  .-ix-akiiig,  I  believe  that  si  quiet,  gentle  and  straightforwai-d— thou-^h 
full  and  eareful— examination,  will  be  the  most  adapted  to  elicit  truth,  and  that 
the  manceuvi-es  and  the  browbeutlng  which  are  the  most  adapted  to  confuse  an 
honest  witness,  are  just  what  the  dishonest  one  is  best  prepared  for." 

When  1  read  thojje  wordy  sentences,  I  could  not  help  thinking  it  was  a 
pity  thai  the  archbishop  did  not  confine  liimself  to  tlieology.  lie  seems 
to  tlilnk  an  honest  witness  easily  batHed  and  fn<;htened  into  telling  a 
lie.  and  to  imagine  that  a  brutal  liar  i>  best  induced  to  tell  the  truth  by 
wooing  him  with  sweet  words,  and  by  a  straiglitforward,  full  and  careful 
oxamination. 


II. — Cross-Examixatiox  of  a  Medical  Witxess. 

'Ihe  following,  taken  from  the  Palmer  case,  is  regarded  as  a  very  fine 
specimen  of  the  cross-examination  of  a  medical  witness: 

Q.  "  To  wliat  constitutional  symptoms  about  Cook  do  you  ascribe  the  convul- 
sions from  which  he  died?"    A.  "Not  to  any." 

Q.  "Was  not  the  fact  of  liis  having  .syphilis  an  important  ingredient  in  your 
jud;-mcnt  upon  the  case?"— A.  "  It  was.  I  judge  that  he  died  from  convulsions, 
by  the  couibination  of  symptoms." 

Q.  "  What  evidence  liave  you  to  lead  you  to  suppose  that  he  was  liable  to  ex- 
citement and  depression  of  spirits?"— A.  "The  fact  that  after  winning  the  race  he 
could  not  si>eak  for  three  minutes." 

Q.  "Anything  else?"— "A.  "xMr.  Jones  stated  that  he  was  subject  to  mental  de- 
pression. Excitement  will  produce  a  state  of  brain  which  will  be  followed  at  some 
distance  by  convulsions.  I  think  Dr.  Bamford  made  a  mistake  when  he  said  the 
braui  was  perfectly  healthy." 

Q.  "  Do  you  mean  to  set  up  that  opinion  against  that  of  Dr.  Devonshire  and  Dr. 
Harland  who  were  present  at  the  post  mortem.?"— A.  "My  opinion  is  founded  in  part 
on  (he  evidence  taken  at  the  inquest,  in  part  on  the  depositions.  With  the  brain 
and  the  system  in  the  condition  in  which  Cook's  were,  I  believe  it  is  quite  pos- 
sible for  convulsions  to  come  on  and  destroy  >i  person.  I  do  not  believe  that  he 
died  from  apoplexy.  He  was  under  the  influence  of  morphia.  I  can't  ascribe  his 
death  to  morphia,  except  that  it  might  assist  in  producing  a  convulsive  attack. 
1  should  consider  morphia  not  very  good  treatment,  considering  the  state  of  ex- 
citement he  was  in.  Morphia,  when  given  in  an  injured  state  of  the  brain,  often  - 
disagrees  with  the  patient." 

Q.  "Butwhat  evidence  have  you  asto  the  injured  state  of  thehruiu?"— A.  "Sick- 
ness often  indicates  it.  I  can't  say  whether  the  attack  on  Sunday  night  was  an 
attack  of  convulsions.  I  think  that  the  Sunday  attack  was  one  of  a  similar  char- 
acter, but  not  so  intense  as  the  attack  of  Tuesday,  in  which  he  died.  I  don't 
think  he  had  convulsions  on  the  Sunday,  but  he  was  in  that  condition  which 
often  precedes  convuluions." 

Q.  "  Have  you  ever  known  a  case  of  convulsions  of  a  tetanic  form  from  intes- 
tinal irritation  terminating  in  death,  in  which  the  patient  remained  conscious  to 
the  last?"— A.  "I  have  not.  Where  epilepsy  terminates  in  death,  consciousness 
ij  gone." 

Q.  "  Can  you  tell  me  of  any  case  of  death  trom  convulsions,  in  which  the  patient 
was  conscious  to  the  last?'— A.  "I  do  not  know  of  any.  Con-v^ilsioiis,  occurring  after 
poison  has  been  taken,  are  properly  called  tetanic." 

Thii  Attomei/'General:  "  We  are  told  by  Sir  Benjamin  Brodie  that  while  the 
paroxysms  of  tetanic  convulsion  last,  there  is  no  difference  between  those  which 
arise  from  strychnine  and  those  which  arise  from  tetanus,  properly  so-called, 
but  the  difference  was  in  the  course  the  symptoms  took.  Now,  what  do  you  say 
is^the  difference  between  tetanus  arising  from  strychnine  and  ordinary  tetanus?' 


APPENDIX.  191 

A.  "The  hands  are  less  violently  contracted;  the  effect  of  the  spasm  is  less  in 
ordinary  tetanus.  The  convulsion,  too,  never  entirely  passes  away.  I  ha\c 
stated  that  tetanus  is  a  disease  ot  days,  strychnine  of  hours  and  minutes;  that 
convulsive  twitchings  are  in  strychnine  the  first  symptoms,  the  last  in  tetanus; 
that  in  tetanus  tlic  hands,  feet  and  legs  are  usually  the  last  affected,  while  in 
strychnine  they  are  the  first.  I  never  said  that  Cook's  case  was  that  of  idioi)athic 
tetanus.  I  do  not  think  it  was  a  case  of  tetanus  in  any  sense  of  the  word  It  dif- 
fered from  the  course  of  tetanus  from  strychnine  in  the  particulars  I  have 
already  mentioned." 

The  Attorney  General:  "Bepeat  them."— A.  "There  was  the  sudden  accessioji  of 
the  convulsions." 

Q.  "  .Sudden — after  what?" — A.  ".\fter  the  rousiug  by  Jones.  There  was  also  the 
power  of  talking." 

Q.  "  Don't  you  know  that  Mrs.  Smyth  talked  and  retained  lier  consciousness  to 
the  end?  Tliat  her  last  words  were  '  turn  me  over?'  "  [There  was  undoubtedls' 
poison  by  strychnine  in  the  case  of  5Irs.  Smyth.]— A.  "She  did  say  something  of 
that  kind.  I  believe  that  in  poison  tetanus  the  symptoms  ai-e  first  observed  in 
the  legs  and  feet.  In  tlie  animals  upon  which  I  have  experimented,  twitchings 
in  the  ears  and  difficulty  of  breathing  have  been  the  premonitory  symptoms." 

Q.  "  When  Cook  felt  a  stiffness  and  difficulty  of  breathing,  and  said  he  should 
fee  suffocated  on  the  first  night,  what  were  those  but  premonitory  symptoms?" 
A.  "Well,  he  asked  to  be  rubbed ;  but  as  far  as  my  experience  goes  with  regard  to 
animals—" 

The  Attorney-  General :  "  They  can't  ask  to  have  their  ears  rubbed,  of  course"  (a 
laugh). — A.  "In  no  single  instance  could  the  animals  bear  to  be  touched." 

Q.  "  Did  not  Mrs.  Smyth  ask  to  have  her  amis  and  legs  rubbed?"— A.  "In  the 
Leeds  case,  the  lady  asked  to  be  rubbed  before  the  convulsions  came  on.  but 
afterwards  she  could  not  bear  it,  and  begged  that  she  might  not  be  touched." 

Q.  "  Can  you  point  out  in  any  one  point,  after  the  premonitory  symptoms,  in 

whicli  the  symptoms  in  this  case  differ  from  those  of  strychnine    tetanus?" 

A.  "There  is  the  power  of  swallowing,  wliich  is  taken  awaj'  by  inability  to  move 
the  jaw." 

Q.  "  But  have  you  not  stated  that  lockjaw  is  the  last  sj-mptom  that  occurs  in 
strychnine  tetanus?"— A.  "I  have.  I  don't  deny  that  it  may  be.  I  am  speaking  of 
the  general  rule.  In  the  Leeds  case  it  came  on  very  early,  more  than  two  hours 
before  death,  the  paroxysms  liaving  continued  al)out  two  hours  and  a  half.  In 
that  case  we  believe  that  tlie  dose  wae  four  times  repeated.  Poison  might  prob- 
ablj'  be  extracted  by  chemical  process  from  the  tissues,  but  I  never  tried  it  ex- 
cept in  one  case  of  an  animal.  I  am  not  sure  wliether  poison  was  in  that  case 
given  througli  the  mouth.  We  killed  four  animals  with  reference  to  tlie  Leeds 
case;  and  in  every  instance  we  found  strychnine  in  the  contents  of  the  stomach. 
In  one  ease  we  administered  it  by  two  processes,  and  one  failed  and  the  other 
succeeded." 

With  regard  to  medical  opinion,  Sir  Alexander  Cockburn  said:  "A  medical 
man  ought  to  be  asked  his  opinion  on  the  supposition  only  that  certain  symp- 
toms existed." 

III. — Medical  Certainty. 

An  eminent  Queen's  Counsel  told  me,  apropos  of  the  quickness  ^vith 
which  medical  practitioners  sometimes  arrive  at  a  conclusion,  of  a  case 
that  occurred  some  years  ago.  A  woman  who  had  cohabited  witli  a 
tradesman  in  a  country  village,  suddenly  disappeared.  Her  paramour 
gave  out  that  she  had  gone  to  America.  Some  years  after,  a  skeleton  was 
found  in  the  garden  of  the  liouse  where  she  had  lived.  On  examination 
by  a  medical  man.  he  at  once  pronounced  it  to  be  that  of  the  missing 


192  APPENDIX. 

woman.  He  formed  this  opinion  from  tlu"  tirrnm^tance  tlial  one  of  the 
teeth  was  gone,  and  that  he  had  extracted  the  corresponding  one  from 
the  woman  some  years  before.  Upontliis  the  prosecution  was  instituted, 
and  the  man  was  committed  for  trial  to  tlie  assizes.  Fortunately,  there 
was  time,  before  the  trial  came  on,  for  a  further  investigation  of  the  gar- 
den where  the  skeleton  was  found,  and  on  digging  near  the  spot,  another 
skeleton  was  discovered,  and  then  anotlier,  and  another;  then  several 
more.  This  threw  some  doubt  upon  the  identification  of  the  bones  iti 
question,  and  on  further  inquiries  ])eing  made,  it  turned  out  that  the 
o-ajden  had  once  been  a  giiisy  burial  ground.  It  need  scarcely  be  added 
that  the  prosecution,  which  had  been  vigorously  taken  up  by  the  govern- 
ment, was  at  once  vigorously  abandon(!d. 


IV, —  Injudicious  Cross-Examination. 

An  example  of  injudicious  cross-examination  will  illustrate  many  ob- 
servations I  have  nu\de  on  that  subject. 

An  action  was  brought  against  a  lessee  for  non-repair;  damages 
claimed  about  £300.  The  witnesses  for  the  plaintiff  had  shown  a  want  of 
water-tightness  and  wind-tightness  suflicient  to  raise  the  expectations 
of  any  young  counsel  who  could  restrain  his  powers  of  cross-examina- 
tion. But  it  is  one  of  the  most  extraordinary  features  in  advocacy,  that 
few  can  resist  the  temptation  to  evil  that  lurks  in  that  fascinating  privi- 
leo-e.  In  this  case  the  enterprising  counsel  for  the  plaintiff  performed 
an  acrobatic  feat  of  cross-examination,  and  attempting  to  turn  a  double 
somersault  alight(;d  on  his  head. 

Witness  for  the  defense  had  said  that  the  lionse  loas  in  a  fair  state  of 
repair: 

(;.  "  It  was  in  splendid  condition,  y/asn'titV  (Imagine,  if  you  cim  tliat  this  is 
cro.ss-examination). 

A.  "I  did  not  say  it  was  in  splendid  condition.  I  said  it  was  in  tenantable 
repair." 

Q.  "  Then  what  ha*  been  said  by  the  witnesses  Jor  the  plaintiff  is  pure  imaginationf" 

A.  "I  don't   know    about    pure    imagination.      1    know    it    i.s    a    got-up-job." 
(Laughter). 
The  witness,  like  a  skilful  arguer,  limited  his  answer  by  appropriate 

terras. 
"  I  don't  mind  your  saying  that,"  retorted  the  counsel,  "  it  doe.sn't  hurt  me." 

lie  was  mistaken;  it  did  hurt  him,  for  the  jury  believed  the  last  an- 
swer of  the  witness,  and  gave  only  trilling  damages. 

The  second  question  in  this  cross-examination  and  its  answer  lost  the 
case  to  the  plaintiff. 


APPENDIX.  193 

V. —  Analysis  of  the  Opening  Speech  of  Sir  Alexan- 
der COCKBURN,  IN  THE  TrIAL   OF  PaLMER   FOR  THE  MUR- 

DER  OF  Cook  by  Poison,  in  1856. 

One  can  not  help  remarking,  at  the  outset,  the  fine  rhetorical  simplicity 
of  the  exordium : 

"  Gentlemen  ot  the  jui-y,  the  duty  which  you  are  called  upon  to  discharge  is  the 
most  solemn  which  a  man  can  by  possibility  be  called  upon  to  perform;  it  is  to 
sit  in  judgment,  and  to  decide  an  issue  on  which  depends  the  life  of  a  fellow- 
creature,  who  stands  charged  with  the  highest  crime  for  which  man  can  be  ar- 
raigned before  a  worldly  tribunal." 

Then  follows  a  detail  of  Palmer's  pecuuiarj^  embarrassments,  ranging 
from  1853  to  Cook's  death.  During  this  period  he  forged  his  mother's 
name  to  acceptances,  and  insured  his  brother's  life,  and  raised  money 
upon  the  security  of  the  policy.  By  his  wife's  death,  in  1854.  he  realized 
from  an  insurance  on  her  life  £13,500,  Avhich  retarded  his  pecuniary 
ruin.  Other  bill  transactions,  however,  followed,  and  finally  he  forged 
Cook's  name  to  a  check  and  obtained  the  money  upon  it.  Then  follows 
an  abortive  attempt  to  insure  for  £25,000  the  life  of  one  Bates,  a  hanger- 
on  in  his  stables. 

"All  these  circunastances,"  says  the  Attorney-General,  "are  impor- 
tant, fcecawse  they  show  the  desperate  straits  in  lohich  the  prisoner  at  that  time 
found  himself.'''' 

Then  followed  letters  from  a  solicitor,  Pratt,  to  Palmer,  pressing  upon 
him  the  necessity  of  meeting  the  numerous  bills  bearing  the  acceptance 
of   Sarah  Palmer. 

On  the  6th  of  November,  Pratt  issued  two  writs  for  £4,000,  one  against 
Palmer,  and  the  other  against  his  mother.  The  writs,  however,  were  held 
back  for  a  time.  Palmer  being  constantly  pressed  by  Pratt  to  raise 
money.  On  the  13th  of  November,  Pratt  wrote  urging  Palmer  to  raise 
£1,000  to  meet  the  bills  due  on  the  9th. 

Then  it  is  stated,  that  at  the  Shrewsbury  races  Cook  had  won  the  sum 
of  £2,050. 

These  are  the  circumstances  which  the  learned  Attorney-General  re- 
ferred to  lisnotimmediatel)/  connected  loith  the  accusation,  butivhicJi  it  would 
he  necessary  to  look  to.  They  are  those  otit  of  lohich  the  motive  arose,  and 
they  come  first  in  the  order  of  time.  When  he  comes  to  the  last  transac- 
tion referred  to,  he  makes  the  brief,  but  pregnant  remark,  '-Within  a 
week  from  that  time  Mr.  Cook  died.''  Then  he  says,  keeping  logically  and 
impressively  straight  to  the  main  issue,  as  if  that  were  never  to  be  lost 
sight  of  for  a  single  moment,  whatever  the  complication  of  circumstances 
through  which  he  must  pass:  "The  important  inquiry  which  we  have 
now  to  make  is,  how  he  came  by  his  death,  whether  by  natural  causes  or  by 
the  hand  of  man,  and  if  the  latter,  by  whose  hand?"  That  was  the  ques- 
tion. 

The  Attorney-General  then  mentions  the  state  of  Cook's  health,  his 
excitement  at  having  won  the  race,  and  proceeds  to  detail  "a  remarkable 

(13) 


194  APPENDIX. 

incident,"  which  occurred   in  the  evening  of   the  day  after  the  race  in 
which  Cook  had  been  so  successful. 

Late  in  the  evening  Fisherwent  into  a  room  in  \vlii(li  lie  found  Pahner 
and  Cooli  drinking  brandy  and  water.  Cook  gave  him  something  to 
drink,  and  said  to  Palmer,  ''You'll  have  some  more,  won't  you?"' 
Palmer  replied,  "Not  imle.ss  yon  finish  your  glass."  Cook  said, '•  I'll 
soon  do  that,  and  he  finished  it  ut  a  gulp,  leaving  only  about  ateaspoon- 
ful  at  the  bottom  of  the  glass,  lie  had  hardly  swallowed  it,  when  he 
exclaimed.  "  Good  God!  there's  something  in  it;  it  burns  my  throat." 
Palmer  immediately  took  up  the  glass,  and  drinking  what  remained, 
said:  "Nonsense,  there's  nothing  in  it."  and  then  itushing  the  glass  to 
Fisher  and  another  person  who  had  come  in,  said :  '•  Cook  fancies  there 
is  something  in  the  brandy  and  water;  there's  nothing  in  it;  taste  it." 
On  which  one  of  them  replied.  "  How  can  we  taste  it?  You've  drunk  it 
all."  Cook  suddenly  rose,  and  left  the  room,  and  called  out,  saying  that 
he  was  taken  serioiisly  ill.  He  was  seized  with  the  most  violent  vomit- 
ing, and  became  so  bad,  that  after  a  little  while  it  was  necessary  to  take 
him  to  bed. 

From  Shrewsbury,  Palmer  and  Cook  went  together  to  Rugeley,  and 
there  occurred  "  an  incident  connected  with  the  occurrences  at  Shrews- 
bury," which  has  to  be  mentioned,  and  that  was  that  "  about  eleven 
o'clock  that  night,  a  Mrs.  Brooks,  who  betted  on  commission,  and  had 
an  establishment  of  jockeys,  went  to  speak  to  the  deceased  on  some 
racing  business,  and  in  the  lobby  she  saw  Palmer  holding  up  a  tumbler 
to  the  light,  and.  having  looked  at  it  through  the  glass,  he  withdrew  to  an 
outer  room,  and  presently  returned  with  the  glass  in  hand  and  went  into 
the  room  where  Cook  -was.  and  in  which  room  he  drank  the  brandy  and 
water,  from  which.  I  suppose,  j'ouwill  infer  that  the  sickness  came  on." 
The  reader  will  see  that  here  the  order  of  time  is  not  (juite  strictly  fol- 
lowed, otherwise  this  incident  would  have  come  before  the  drinldng  of 
the  liquid;  but  he  will  observe  the  force  of  this  mode  of  filling  in  an  im- 
portant circumstance,  which,  standing  utterly  by  itself,  may  be  taken 
and  fitted  into  its  place  at  any  moment,  and  certainly  attracts  more  atten- 
tion by  halting  in  the  narrative  for  the  purpose  of  doing  so. 

"I  do  not  charge,"'  the  Attorney-General  continues,  "that  by  anything 
which  caused  that  sickness  Cook's  death  was  occasioned ;  but  I  shall 
show  you  that  throughout  the  ensuing  days  at  Rugely  he  constantly  re- 
ceived things  from  the  prisoner,  and  that  during  those  days  that  sick- 
ness was  continued.  I  shall  show  you  that  after  he  died,  antimony  was 
found  in  the  tissues  of  his  body  and  in  his  blood  — antimony  admin- 
istered in  the  form  of  tartar-emetic,  which,  if  continued  to  be  applied, 
will  maintain  sickness.  It  was  not  that,  however,  of  which  this  man 
died.  The  charge  is  that,  hnvinrf  been  prepared  by  antimony,  he  was  killed 
by  strychnine.''^ 

Now,  up  to  this  time,  strychnine  had  not  been  mentioned,  and  if  the 
jury  had  been  tliinking  tiiat  antimony  was  the  agent  employed  to  take 
away  Cook's  life,  they  must  have  been  greatly  surprised  when  they  were 


APPENDIX.  195 

told  it  was  not;  and  their  surprise  must  have  been  greater  still,  and  en- 
hanced with  the  sense  of  gratified  cariosity,  when  they  were  told  the 
reason  of  its  having  been  used,  and  the  real  poison  which  caused  the 
deceased's  death.  I  can  not  help  thinking  that  this  is  worthy  of  study, 
for  its  rhetorical  effect. 

Next  comes  a  description  of  stiychnine,  its  soiu'ce,  nature,  and  effects 
upon  animal  life;  and  particularly  the  fact,  that  from  half  to  three- 
quarters  of  a  gi-ainwill  destroy  life.  Then  a  description  of  the  nervous 
organization  of  man,  upon  which  this  subtle  poison  exercises  its  deadly 
power.  Here  is  manifested  a  power  and  skill  which  the  reader  can  not 
too  carefuUj'  study. 

He  says:  "Strychnine  affects  the  nerves  which  act  on  the  voluntary 
muscles,  and  it  leaves  whollj^  unaffected  the  nerves  on  wliich  human 
consciousness  depends,  and  it  is  important  to  bear  this  in  mind — some 
poisons  produce  a  total  absence  of  consciousness,  but  the  poison  to 
which  I  refer  affects  the  voluntary  action  of  the  muscles  of  the  body, 
and  leaves  unimpaired  tlie  power  of  consciousness."' 

This  was  the  point  in  the  case,  as  will  appear  hereafter;  and  it  was 
extracted  from  the  mass  of  circumstances  as  skilfully  as  the  subtle  poi- 
son is  extracted  by  the  "  skill  of  the  operative  chemist  from  tlie  vegetable 
product  known  as  mtx  vomica."' 

"  Now,  the  way  in  which  strychnine  acting  upon  the  voluntary  mus- 
cles is  fatal  to  life  is,  that  it  produces  the  most  intense  excitement  of  all 
those  muscles,  violent  convulsions  take  place — spasms,  which  affect  the 
whole  body,  and  which  end  in  rigidity;  all  the  muscles  become  fixed, 
and  the  respiratory  muscles  in  whicli  the  lungs  have  play  are  fixed  with 
an  immovable  rigidity;  respiration  consequently  is  suspended,  and 
death  ensues.  These  symptoms  are  known  to  medical  men  under  the 
term  of  tetanus.  There  are  other  forms  of  tetaims  which  produce  deatla, 
and  which  arise  from  other  causes  than  the  taking  of  strychnine ;  but 
there  is  a  wide  difference  between  the  various  forms  of  the  same  disease, 
which  prevents  tlie  possibility  of  mistake." 

To  prevent  that  possibility,  the  learned  counsel  distinguished  between 
the  different  forms  of  tetanus^  and  described  their  symptoms,  one  form 
being  known  as  traumatic,  and  the  other  as  idiopathic;  one  cliaracteristic 
of  tetanus  from  strychnine  being  that  "  the  paroxysms  commence  with  all 
their  power  at  the  very  first,  and  terminate,  after  a  few  short  minutes  of 
fearful  agony  and  struggles,  in  the  dissolution  of  the  victim." 

This  point  in  the  opening  speech  being  an-ived  at,  the  reader  will  have 
observed  that  all  is  now  readj'  for  the  plain  matter-of-fact  evidence. 
Everything  is  prepared  for  it.  All  the  branches  of  fact  are  placed  in 
order,  and  converge  to  a  common  center;  the  jury  know  all  about  the 
turf  propensities  of  the  pi-isoner;  they  know  that  he  had  forged  his 
mother's  name,  and  that  he  was  in  danger  of  being  convicted  of  felony; 
they  more  than  suspect  tliat  he  took  away  his  brother's  life ;  that  he  in- 
tended to  destroy  Bates;  they  have  a  suspicion  tliat  the  £13,000  which 
he  obtained  from  the  insurance  office  was  the  price  of  his  wife's  life; 


196  APPENDIX. 

tht'v  know  iliat  Cook  was  an  easy,  foolish  man,  and  that  the  prisoner 
was  a  cunning  and  rapaeious  knave;  they  know  that  Pahner  put  tlie  an- 
timony into  tlie  braudy-and- water;  tliey  know  all  about  the  two  sets  of 
nerves,  what  strychnine  is,  and  how  it  kills  by  tetamis;  they  know  that 
there  are  three  kinds  of  tetanus,  and  that  two  sorts  always  commence  with 
mild  symptoms,  gradually  increasing,  while  the  tetanus  produced  by 
strychnine  comes  on  all  at  once  and  kills  very  quickly.  They  can't  mis- 
take (ranmatic  and  idiopathic  from  tetanus  produced  by  poison.  They  will 
discern  the  difference  in  a  moment  when  they  see  tlie  symptoms. 

Palmer  attended  on  Cook  for  days,  and  during  the  whole  time  Cook's 
sickness  continued.  Whatever  was  sent  by  Palmer  had  the  same  effect. 
A  woman  at  the  inn,  who  tasted  some  broth  that  had  been  sent  over  from 
Palmer's  house,  was  taken  ill  immediately  after.  On  the  Saturday  a 
Dr.  Bamford  was  called  in,  and  Palmer  told  him  that  Cook  had  been 
dining  too  freely,  and  had  a  bilious  attack.  This  was  false,  and  un- 
necessarily false,  if  Palmer  was  innocent.  And  this  led  the  Attorney- 
General  to  the  task  of  proving  that  it  was  false,  by  showing  that  there 
was  no  bilious  symptom  whatever  din-ing  the  whole  time  of  Cook's  sick- 
ness. Coffee,  administered  while  Palmer  was  present,  j)roduced  vomit- 
ing; barley-water,  at  six  when  he  was  not  there,  did  not  have  the  same 
effect;  at  eight  when  he  was  present  again,  vomiting  was  once  more 
produced  by  arrowroot. 

The  Attorney-General  says :  "  These  may  be  coincidences,  but  they  are 
facts,  which,  of  whatever  interpretation  they  may  be  susceptible,  are  well 
deserving  of  attention." 

During  Cook's  illness  Palmer  went  to  London,  on  Monday,  and  in  his 
absence  Cook's  health  decidedly  improved.  While  in  London,  Palmer 
conferred  with  Herring,  a  man  on  the  turf,  whom  he  engaged  to  settle 
Cook's  accounts,  not  mentioning  Fisher,  who  usually  did  so.  He  in- 
structed Herring  to  collect  the  sums  which  Cook  was  entitled  to  receive, 
and  out  of  the  money  to  pay  certain  of  his  (Pabnev's)  oicn  debts,  telling 
Herring  that  Cook  had  had  a  dose  of  calomel  and  must  not  come  out. 

In  the  evening  Palmer  returned  to  Rugeley ,  arriving  at  about  9  o'clock, 
visited  Cook,  and  from  10  till  11  was  constantly  in  and  out  of  Cook's 
room.  Just  at  this  point,  while  he  is  in  and  out  of  Cook's  room,  the 
learned  counsel  informs  the  jury  that  "in  the  course  of  the  evening  he 
went  to  aman  named  Newton,  assistant  to  a  man  named  Salt,  and  applied 
for  tiiree  grains  of  strychnine,  whi(;h  Newton,  knowing  Palmer  to  be  a 
medical  man,  did  not  hesitate  to  give  him.  And."  he  continued,  "  Dr. 
Bamford  had  sent  on  this  day  the  eame  kind  of  pills  that  he  had  sent  on 
Saturday  and  Sunday.  I  believe  it  was  the  doctor's  habit  to  take  the 
pills  himself  to  the  '  Talbot  Arms  '  and  entrust  them  to  the  care  of  the 
housekeeper,  who  carried  them  upstairs;  but  it  was  Palmer's  practice  to 
come  in  afterwards,  and  evening  after  evening  to  administer  medicine  to 
the  patient.  There  is  no  doul)t  that  Cook  took  pills  on  Monday  night. 
Whether  he  took  the  pills  prej)arcd  for  him  by  Dr.  Bamford  and  similar 
to  those  taken  on  Saturday  and  Sunday,  or  wiiether  Pahner  substituted 


APPENDIX.  197 

for  Dr.  Bamford's  pills  some  of  his  own  construction,  consisting  in  some 
measure  of  stiychnine,  I  must  leave  to  the  jury  to  determine." 

Then  at  12  o'clock  at  night  Cook  screams  and  is  taken  with  convul- 
sions, but  he  was  conscioiis — one  of  the  symptoms,  as  the  jury  have  got 
well  into  their  minds,  of  tetanus  produced  by  strychnine.  Palmer  comes, 
gives  him  more  medicine ,  and  he  vomits.  The  patient  became  more  calm, 
and  begged  the  women  to  rub  his  limbs.  They  did  so,  and  found  them 
cold  and  rigid;   (another  symptom  of  tetanus  produced  by  strychnine). 

Other  suspicious  circumstances  are  now  detailed,  the  purchase  on 
Tuesday  of  strychnine  from  another  shop  by  Palmer,  and  an  effort  made 
by  him  to  prevent  Newton  from  ascertaining  that  fact,  in  which,  how- 
ever, he  failed. 

Now  comes  a  difficult}%  as  if  for  the  purpose  of  showing  the  student 
how  to  deal  with  it.  "  And  here,  I  must  mention  a  fact  of  some  impor- 
tance respecting  Mr.  Newton.  When  examined  before  the  coroner,  that 
gentleman  only  deposed  to  one  i:)urchase  of  strycliuine  by  Palmer;  and 
it  was  only  as  recently  as  yesterday  that,  with  many  expressions  of  con- 
trition for  not  having  been  more  explicit,  he  communicated  to  the  Crown 
the  fact  that  Palmer  had  also  bought  strychnine  on  Monday  night." 

The  Attorne5f-Generars  mode  of  disposing  of  this  "  difficulty  "  was  to 
place  it  in  his  opening  speech  fairly  before  the  jury,  with  an  intimation 
that  "  they  must  deal  with  it." 

Next  follows  a  statement  that  Palmer  on  that  daj^  procured  one  Ches- 
hire to  fill  up  a  check  in  his  (Palmer's)  favor  to  be  signed  by  Cook  for 
£350,  and  said  that  he  would  get  Cook's  signature  to  it.  It  is  intimated 
that  the  signature  to  that  check  was  forged. 

That  morning  Palmer  sent  to  Cook  coffee  and  broth  which  produced 
protracted  vomiting,  and  now  a  new  person  makes  his  appearance  on  the 
stage.  This  new  person  was  a  Mr.  Jones,  a  surgeon  and  personal  friend 
of  Cook's.  Palmer  had  written  to  this  gentleman  and,  foolishlj'  enough, 
stated  that  Cook  was  "  suffering  from  a  bilious  attack,  accompanied 
with  diarrhcea,"  adding,  "  it  is  desirable  for  you  to  come  to  see  him  as 
soon  as  possible."  This  is  considered  by  the  learned  counsel  "  worthy 
of  remark."  And  the  remark  is  to  the  effect  that  the  statement  was  un- 
true, and  probably  intended  to  give  color  to  the  idea  that  Cook  died  a 
natural  death. 

Jones  saw  at  once  it  was  not  a  bilious  attack.  At  seven  o'clock  Dr. 
Bamford  called,  the  patient  doing  pretty  well.  Then  comes  a  consulta- 
tion of  the  medical  men.  Palmer,  of  course,  being  included,  poor  Cook 
exclaiming,  "  Mind,  I'll  have  no  more  pills  or  medicine  to-night."  He 
evidently  did  not  believe  that  they  did  him  any  good. 

Dr.  Bamford  made  the  pills,  and  Palmer,  having  asked  him  to  write 
the  directions,  carried  them  off  with  him,  and  half  or  three-quarters  of 
an  hour  afterward  brought  the  pills  to  Cook.  He  called  Jones'  attention 
to  the  handwriting  of  the  direction  on  the  pill-box,  observing  how  dis- 
tinct and  vigorous  it  was  for  a  man  upwards  of  eighty. 

At  half -past  ten  at  night  the  pills  are  administered,  the  patient  is  im- 


li)8  APPENDIX. 

niediiitely  sick,  bin  llie  pills  are  not  ln-()ugliLui>.  At  a  later  period,  there 
is  a  scream  and  exclamation  from  the  patient.  Palmer  is  sent  for,  in  two 
minutes  he  is  beside  Cook's  bed,  saying  he  had  never  dressed  so  quickly 
In  his  life.  The  counsel  intimated  to  the  jury  that  he  had  not  dressed 
;it  all ;  that  he  was  waiting  for  the  catastrophe. 

Now  then  the  all-important  symptoms  are  described.  Much  depends 
on  these  being-  accurately  noted,  otherwise  the  tetanns,  if  tetanns  it  be, 
■nniy  be  trmnnutic  or  idiopathic.  "  Cook  was  found  in  the  same  condition, 
with  the  same  symptoms  as  the  night  l)ef()re;  gasping  for  breath,  scream- 
ing violently;  his  body  convulsed  with  cramps  and  spasms,  and  his  neck 
rigid.  He  asked  Palmer  for  the  remedy  that  had  relieved  him  the  night 
before.  Palmer  goes  to  fetch  it.  He  comes  back  with  two  pills,  which 
he  says  are  ammonia,  though  the  Attorney-General  was  "  assured  that 
it  is  a  drug  that  requires  much  time  in  the  preparation,  and  can  with 
difliculty  be  made  into  pills.'*  The  pills  are  taken  at  once  and  brought 
up  immediately. 

We  all  know  with  what  dramatic  effect  a  man  dies  on  the  stage  when  a 
great  tragedian  has  the  part.  Let  us  see  how  a  man  dies  at  the  hands 
of  a  great  master  of  narrative,  when  the  mind  has  been  i^repared  for  the 
scene  and  the  circumstances:  -'And  now  ensued  a  terrible  scene.  He 
was  instantly  seized  with  violent  convulsions;  by  degrees  his  body 
began  to  stiffen  out;  then  suffocation  commenced.  Agonized  with  pain, 
he  repeatedly  entreated  to  be  raised.  They  tried  to  raise  him,  but  it 
was  not  possible.  The  body  had  become  rigid  as  iron,  and  it  could  not 
be  done.  He  then  said :  'Pray  turn  me  over.'  He  gasped  for  breath, 
but  could  utter  no  more.  In  a  few  moments  all  was  tranquil — the  tide  of 
life  was  ebl)ing  fast.  Jones  leant  over  him  to  listen  to  the  action  of  the 
heart.     Gradually  the  pulse  ceased — all  was  over — he  was  dead!"' 

Now  comes  the  great  point,  made  the  central  object  in  this  dramatic 
scene. 

"  I  will  sliow  you  that  this  was  a  death  referable  in  its  symptoms  to 
the  tetanus  produced  by  strychnine,  and  not  to  any  other  possible  form 
of  tetanus.''^ 

A  number  of  incidents  are  then  enumerated,  showing  that  after  Cook's 
death  Palmer  had  busied  himself  about  the  affairs  of  the  deceased, 
searched  the  pockets  of  his  coat,  tluit  his  letters  and  betting-book  were 
missing,  that  Palmer  tried  to  induce  Cheshire  to  attest  Cook's  signature 
to  a  paper  forty-eight  hours  after  his  death.  When  Stevens,  Cook's 
father-in-law,  tells  Palmer  that  he  will  have  a  post-mortem  examina- 
tion, Palmer  offered  to  nominate  the  surgeon,  and  that  upon  Palmer's 
importunity  Dr.  Bamford  filled  up  the  customarj"  certificate,  and  entered 
the  cause  of  death  as  apoplexy. 

This  w'as  a  circumstance  not  in  favor  of  the  prosecution,  and  the 
learned  Attorney-General  deals  with  it  on  the  spot.  "Dr.  Bamford  is 
upwards  of  eighty,  and  I  hope  that  it  is  to  some  infirmity  connected 
with  his  great  age,  that  this  most  unjustifiable  act  is  to  be  attributed. 


APPENDIX.  199' 

However,  he  shall  be  produced  iu  court,  and  he  will  tell  you  that  apo- 
plexy has  never  been  known  to  produce  tetanus.''^ 

In  fact,  he  should  be  his  own  antidote.  Perhaps  that  was  a  better 
thing  to  do  than  to  get  some  one  else  to  contradict  his  certificate. 

Palmer  sends  for  Newton,  and  singularly  enough  at  this  time  wants  to 
know  how  much  strychnine  wi.l  kill  a  dog.  and  ''how  much  would  be 
found  in  the  tissues  and  intestines  after  death.'''  Awkward  questions,, 
certainly,  for  the  defense  to  deal  with.  Newton  replied  none  at  all :  ''but 
that  is  a  point,'*  says  the  Attorney-General,  "  on  which  I  will  produce 
important  evidence.'*  Palmer  tells  the  medical  men  who  conducted  the 
post-mortem  that  Cook  had  had  epileptic  fits;  that  they  would  find  "  old 
disease  intheheartandhead;*' that  the  poor  fellow  was  "full  of  disease,*' 
and  had  all  kinds  of  complaints."  All  these  statements  were  com- 
pletely disproved  by  the  post-mortem  examination.  Liver,  lungs  and 
kidneys,  all  healthy.  And  there  was  nothing  to  cause  death;  not  a  trace 
of  poison  was  found,  not  even  at  the  second  examination,  after  the  ex- 
humation of  the  body  sometime  afterwards.  Palmer  was  delighted,  and 
turning  to  Dr.  Bamford,  exclaimed,  "Doctor,  they  won't  hang  us  yet!" 

There  were  other  statements  of  suspicious  conduct  at  the  post-mortem 
examination,  and,  among  other  things,  an  attempt  by  Palmer  to  bribe 
the  postboy  to  upset  his  vehicle,  and  break  the  jar  containing  the  stom- 
ach and  intestines  which  were  to  be  subjected  to  analysis.  It  is  further 
stated  that  Palmer  sent  presents  to  the  coroner,  and  that  prior  to  the 
Shrewsbury  races  he  had  no  money,  and  afterwards  was  flush  of  cash. 
The  following  is  a  summary  of  the  circumstances,  showing  Palmer's  po- 
sition, and  how  he  was  reduced  to  the  desperate  extremity  of  forging 
acceptances : 

"  With  ruin  staring  him  in  the  face,  you,  gentlemen,  must  say  whether 
he  had  not  sufficient  inducement  to  commit  the  crime.*'  But  there  was 
a  further  object;  "the  claim  of  £4,000  which  he  said  he  had  against 
Cook  for  bills;  and  he  wanted  Polestar;"  further  "the  fact,  too,  that 
Cook  was  mixed  up  in  the  insurance  of  Bates,  may  lead  one  to  sur- 
mise that  he  was  in  possession  of  secrets  relating  to  the  desperate  ex- 
pedients to  which  this  man  had  resorted  to  obtain  money.  I  will  leave 
you  to  say  whether  tliis  combination  of  motives  may  not  have  led  to  the 
crime  with  which  he  is  charged.  This  you  will  only  have  to  consider, 
supposing  the  case  to  be  balanced  between  probabilities ;  but  if  you  be- 
lieve the  evidence  as  to  what  took  place  on  the  Monday  and  the  Tuesday — 
if  you  believe  the  paroxysms  of  the  Monday,  tlve  mortal  agony  of  the 
Tuesday  —  I  shall  show  that  things  were  administered  on  both  those 
days  by  the  hand  of  Palmer,  by  a  degree  of  evidence  almost  amounting 
to  certainty." 

In  conclusion,  the  Attorney-General  stated  that  although  the  detection, 
of  strychnine  in  the  human  body,  after  death,  was  a  matter  of  great  un- 
certainty, its  effects  were  distinguishable  from  those  of  all  other  agents,, 
and  that,  although  the  analysis  failed  to.  yield,  evidence  of  the  presence  of, 


200  APPENDIX. 

Strychnine,  it  showed  tlie  presence  of  tintiniony,  but  for  what  purpose 
that  drug  was  administered  he  admits  is  uncertain  — either,  perhaps,  to 
destroy  the  patient  directly,  or  bring  about  such  appearance  of  disease 
as  to  account  for  his  death. 


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